Co-operative Government in South Africa's Post-Apartheid Constitutions: Embracing the German Model?
33 Verfassung und Recht in Ubersee 432 (2000)
26 Pages Posted: 23 Jan 2020
Date Written: 2020
Abstract
Constitutional borrowing became a major feature of the post-cold war process of state reconstruction Regardless of the form of constitution-making adopted in each particular case, whether new constitutions were negotiated in a round-table process, most common in eastern Europe, or among parties in a democratically elected constitutional assembly, as in South Africa, the practice of borrowing has been ubiquitous Legal transplants which result from this practice provide an opportunity to engage in a form of comparative legal analysis that, in my view, demonstrates how both the act of borrowing and subsequent outcomes have more to do with the politics of the receiving entity than with the application and meaning of the borrowed form in its original context There is however another possibility for the comparative project, and that is for the donor system to view the ways in which its borrowed form is applied in the new context, providing an opportunity to consider inherent and unchartered alternatives In this paper I will consider South Africa's "borrowing'' and "adaptation" of the German model of constitutional relations - particularly with respect to the division of legislative power - between the central and regional governments, as a way to both explore the question of constitutional borrowing and also to consider, conjecturally, how this experience may reflect back on developments within the German system.
Keywords: south africa, constitution, constitution-making, germany
JEL Classification: K10, K33
Suggested Citation: Suggested Citation