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Volume 5

Human Rights in Context


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Constitutionalism and Transitional Justice in South Africa

Andrea Lollini
Translated by Alexandra Tatiana Pollard
With a Foreword by Roberto Toniatti, Universit√° di Trento

238 pages, bibliog., index

ISBN  978-1-84545-764-8 $120.00/£85.00 Hb Published (January 2011)


Hb   Recommend to your Library

“Andrea Lollini’s intellectual contribution... offers important and interesting points of departure on a plurality of issues and disciplines that are rooted in established academic culture but that may also anticipate the outcome of future research.”  ·  [From the Foreword]

Over the last fifteen years, the South African postapartheid Transitional Amnesty Process – implemented by the Truth and Reconciliation Commission (TRC) – has been extensively analyzed by scholars and commentators from around the world and from almost every discipline of human sciences. Lawyers, historians, anthropologists and sociologists as well as political scientists have tried to understand, describe and comment on the ‘shocking’ South African political decision to give amnesty to all who fully disclosed their politically motivated crimes committed during the apartheid era. Investigating the postapartheid transition in South Africa from a multidisciplinary perspective involving constitutional law, criminal law, history and political science, this book explores the overlapping of the postapartheid constitution-making process and the Amnesty Process for political violence under apartheid and shows that both processes represent important innovations in terms of constitutional law and transitional justice systems. Both processes contain mechanisms that encourage the constitution of the unity of the political body while ensuring future solidity and stability. From this perspective, the book deals with the importance of several concepts such as truth about the past, publicly shared memory, unity of the political body and public confession.

Andrea Lollini received his Ph.D. from the Ecoles des Hautes Etudes en Sciences Sociales in Paris. He has published widely on international and constitutional law and is Assistant Professor of Comparative Constitutional Law at the Political Science Faculty of the University of Bologna. He works as Chargé de Mission at the Institut des Hautes Etudes sur la Justice of Paris. He is also currently one of the coordinators of the international research project: Changing Role of the Highest Courts in an Internationalising World of the Hague Institute for Internationalisation of Law (HiiL).

Subject: General History
Area: Africa

LC: KTL2101 .L6513 2011

BL: YC.2011.a.17259

BISAC: SOC000000 SOCIAL SCIENCE/General; LAW018000 LAW/Constitutional

BIC: LAQ Law & society; JPVH Human rights




Contents

Foreword
Abbreviations

Introduction

  • Preliminary Remarks
  • Post-apartheid Constitutionalism: Continuity and Discontinuity with the Tradition
  • Continuity Discontinuity: the Peculiarities of Post-apartheid Constitutionalism
  • The Establishment of the Post-apartheid Constitutional System

PART I: CONSTITUTION MAKING PROCESS AND PROCEDURE

Chapter 1. Constituent Facts

  • Apartheid’s Legacy and Constructing the New Political Body’s Unity
  • Unity as Collective Acceptance of Post-apartheid Constitutional Principles
  • The Dogma of National Unity, Common Citizenship and the Political Myth of the Rainbow Nation
  • Unity through the Technique of (Pre)Constitution
  • Making Negotiations: a Clash between Different Theories
  • African National Congress’s Universalist Constitutionalism
  • National Party’s and Inkatha Freedom Party’s Relativist Constitutionalism
  • Unity through Fragmentation of the Constituent Act
  • Phases Dominated by Constituent Facts
  • The First Phase: Removal of Obstacles Phase
  • The Second Phase: Political Violence and Transition Obstacles

Chapter 2. Constituent Acts

  • Multiparty Assemblies: Gradual Predominance of Constituent Acts
  • Interim and Definitive Constituent Acts
  • Deciding Who Decides The Constitutional Principles
  • The Bill of Rights
  • A Break from the Past
  • The Genesis of the Truth and Reconciliation Commission
  • The Institution of the Constitutional Court: the Paradox of a Constituted Body
  • Co-participating in the Constituent Process
  • The Different Forms of Judicial Review Procedures
  • The Constitutional Court’s Constituent Influence
  • The Conclusion of the Constitution Making Procedure
  • Notes on the Post-apartheid State and Government Forms
  • The Post-apartheid Constitution as Peace Treaty

PART II: THE CONSTITUENT ROLE OF THE TRUTH AND RECONCILIATION COMMISSION

Chapter 3. The Constitutional Suspension of a Strictly Criminal Approach

  • Introduction
  • The Functioning of the Truth and Reconciliation Commission
  • The Human Rights Violation Committee, Investigation Units and Public Special Hearings
  • The Amnesty Committee
  • Temporal and Subject Matter
  • Jurisdiction
  • Amnesty Hearing Procedure
  • The Relationship with Criminal Justice: Separation and Complementarity
  • The Impact of the Amnesty Process: Questioning Numbers
  • The Full Disclosure of All Relevant Facts and the Idea of ‘Truth’
  • Constitutional Suspension of a Strictly Criminal Approach for Political Crimes Committed under Apartheid
  • Individual Volition as a Premise for the Suspension of a Strictly Criminal Approach
  • Post-TRC: Suspension or Definitive Cancellation of Criminal Justice for Political Crimes under Apartheid?
  • The Problems of Using a Criminal Approach during Regime Transitions
  • Post-conflict Justice in Europe between Hypertrophy of History and Law
  • Notes on Post-conflict Justice and Political Transitions outside of Europe

Chapter 4. Confession as a Strictly Constituent Act

  • Introduction
  • The Truth and Reconciliation Commission and the Constitution Making Process
  • Strictly Temporal Link
  • Formal and Legal Link
  • The Material Link
  • Confession as a Strictly Constituent Act
  • The Full Disclosure
  • The Attributes of the Confession
  • Confession as an Act of Capitulation
  • Confession: Constitution and Preservation of a Community’s Unity
  • Amnesty as a Non Automatic Provision: Counterbalancing the Right to Pardon
  • Confession and Truth

Conclusion

  • Confession, Constituent Pact and an ‘Absolutist’ Communitarian
  • Constitutionalism

Bibliography
Index

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