Authorizing Subnational Constitutions in Transitional Federal States: South Africa, Democracy, and the Kwazulu-Natal Constitution

Abstract

Not all federal systems permit their constituent units to adopt constitutions. This Article considers whether, and under what circumstances, subnational constitutions tend to contribute to the volatility or stability of their respective federal systems. By examining the role that subnational constitutions played in South Africa’s celebrated democratization, this Article observes that a transitional federal state can increase its flexibility and adaptability by merely authorizing subnational constitutions. The Article concludes that federal systems, particularly those undergoing fundamental change, can be better equipped to manage regime-threatening conflicts and perpetuate a democratic political culture if they permit constituent units to adopt constitutions.

Keywords: South Africa, democracy, democratic theory, state constitutional law, subnational constitutional law, federalism, comparative law, comparative constitutional law, transitional justice, emerging democracies, Africa, political identity, voter choice, public choice, Zulu, Kwa-Zulu, apartheid, IFP, ANC