The constitutionalisation of South Africa’s foreign policy
Date
2020
Authors
Moloi, Sehloho Francis
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Abstract
Before 1994, the conduct of foreign policy in South Africa was governed by the old English and Roman-Dutch common law and guided by ‘doctrines’ such as parliamentary sovereignty, ‘act of state’, and stare decisis under a system of government based on racial discrimination, violation of rights, and disdain of international law (to mention but a few). The cumulative effect of apartheid policies and specifically how government interpreted and applied the common law and these doctrines over foreign policy matters led to the total exclusion of the courts from adjudicating foreign affairs. Concomitantly, the exclusion of the courts from foreign affairs and the government’s opposition to international law squelched any possibility of importing into the foreign policy domain the application of constitutional norms such as rule of law and political accountability, as well as principles such as self-determination and respect for human rights which had come to characterise the international system in the aftermath of WWII. Thus, the conduct of foreign policy in pre-democratic South Africa was rendered non-justiciable and ‘unbound’ by constitutional norms. That position changed fundamentally in 1994 when South Africa became a constitutional democracy under the rule of law. This study argues that, since the advent of constitutional democracy in 1994, South African foreign policy has been ‘constitutionalised’ (‘bound’ by constitutional norms) and rendered justiciable, and the courts now play an important role in ‘supervising’ and/or ‘controlling’ the exercise of foreign policy powers by the political branches (that is, executive and legislative branches). This current position is a radical departure from, and a clear rejection of, how foreign policy was conducted before 1994. At founding, one of the critical issues that confronted the framers of both the 1993 (‘interim’) and 1996 (‘final’) constitutions was how democratic South Africa should relate to the international community and what role, if any, this country should playin global politics and what norms, if any, should guide the conduct of its foreign policy. This issue required serious and careful consideration on the part of the framers because it was clear that, in addition to addressing the domestic malady of apartheid, the other very pressing and equally important political objective was to remodel the image of South Africa in the eyes of the international community; from a pariah (rogue apartheid) state to a cooperative and responsible member in the family of nations. The focus of this study is, therefore, on the relationship between South African foreign policy and the Constitution and the key question is: how should foreign policy be conducted in South Africa which became (in 1994) a constitutional democracy under the rule of law? To answer this question, the study argues that the adoption of a new constitution with a justiciable Bill of Rights fundamentally transformed the entire gamut of the exercise of public power in South Africa, including the exercise of public power in the realm of foreign policy. It points out that the new democratic order brought with it a plethora of norms, values, standards and principles such as supremacy of the constitution, principle of legality, and political accountability which define and set limits on how public power in general and particularly in foreign affairs, should be exercised. It will be demonstrated that since 1994, South African foreign policy -unlike in the apartheid era -is now required to be consistent with the norms, values, standards and principles enshrined in the Constitution such as supremacy of the constitution, rule of law and human rights, and that foreign policy is subject to constitutional-judicial control. Since 1994, South African courts have been inundated with applications that sought to challenge the very legitimacy or legality of government’s conduct in foreign affairs; something unthinkable in the pre-democratic era. In the course of adjudicating these cases, South African courts are alive to the fact that foreign affairs are indeed not the same as domestic affairs and that the ‘prudential characteristics’ of the former (for example, that diplomacy is a very specialised, delicate and sensitive area for diplomats in which judges lack competence and skill to make decisions) be taken into account when deciding foreign policy cases. However, and notwithstanding these ‘prudential characteristics’, South African courts are unambiguous about the kind of norms and principles which must, nonetheless, apply to the exercise of foreign policy powers (for example, that the exercise of discretion by the executive in the conduct of foreign policy be rational). What is clear is that the conduct of foreign policy in South Africa can no longer be treated as ‘ordinary politics’ unbound by constitutional norms. In the end, the study identifies what could, arguably, be considered as nascent principles of South African foreign affairs law under the current constitutional-legal order
Description
A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy at the University of the Witwatersrand, 2020