Subnational constitutions in South Africa

In the three months before the first democratic elections in April 1994, the interim Constitution of 1993 were amended twice to bring into the fold two ‘spoilers’ who had the capacity to wreck the holding of free and fair elections – the Inkhata Freedom Party and the Freedom Front. In the case of the former, the power to draft a provincial government was a central concession by the two main partners to the constitutional deal – the African National Congress and the National Party. Given the ANC’s dislike of federalism (and the fear of unleashing centrifugal forces) the concession was very stingy leaving little scope for an expansive power. When only opposition-held provinces sought to utilize the power, the Constitutional Court gave these constitutional provisions a narrow reading, denuding them of any vitality. The result is that subnational constitutions are but a further element in South Africa’s hybrid federal system – a hollow promise.