The South African Constitution establishes procedures for amending any of its provisions
and empowers the Constitutional Court to decide on the constitutionality of these
amendments. Whether or not the Constitution imposes judicially enforceable substantive
limits on the powers of Parliament to amend the Constitution is not clear. This article
argues that the Constitution does not impose substantive limits on the power of
constitutional amendment. However, the fact that the Constitution establishes different
procedures for the amendment of different sections creates an implied hierarchy within the
Constitution. This implied hierarchy enables the Constitutional Court to scrutinise the
substance of constitutional amendments to determine compliance with the proper procedure
for each amendment. Nevertheless, once the court ascertains that an amendment has been
enacted by following the appropriate procedure, the amendment cannot be attacked on
substantive grounds. Contrary to the views of some scholars, the Constitution does not
recognise the ‘basic structure’ doctrine. It does not recognise extra-constitutional limits on
the power of constitutional amendment. The principal purpose of the explicit authorisation
of the Constitutional Court to decide on the constitutionality of amendments is to
affirm its exclusive jurisdiction in relation to these amendments.
"While public participation in constitution-making is recognised under international law, its extent is not elaborated. This has resulted in governments pursuing constitution-making processes that, despite involving public ...
Fombad, Charles Manga(Edinburgh University Press, 2017-02)
Until fairly recently, the issue of constitutional implementation has surprisingly received little attention both in constitutional theory and practice. Yet it is a crucial aspect of constitutional effectiveness. Without ...