This presentation explores the democracy-supporting role that procedural values such as participatory governance, impartiality and justified public decision-making, play in the process of consolidating peace and democracy in South Africa. The argument is made in the context of the high levels of violent protest action that have plagued the country in recent years, which is destabilising, illegitimating and constitutes a significant threat to the democratic and constitutional health of South Africa. Outcomes of recent studies in the area of social science are drawn on, suggesting that an increasing number of citizens feel that resorting to violence is the only effective means of ensuring that government will listen to them – ‘citizen articulation of procedural injustice’ in interactions with the state. It is argued that public decision-making which takes sufficient cognisance of procedural principles is enhances legitimacy and more peaceful resolution of societal conflict.
The domestic allocation of responsibility for the treaty-making is a significant question of the constitutional separation of powers, determining whose voice is accounted for in the state’s conduct of its foreign relations. Certain States, including South Africa, have sought to augment democratic participation in the exercise of their foreign relations by giving a role for the legislature and even the judiciary in the State’s treaty-making power. The South African developments will be set out and compared with examples from different jurisdictions, drawing out global constitutional developments in re-allocating aspects of treaty-making authority away from the executive. It considers how international law takes account of these constitutional developments, if at all. It concludes by considering possibilities for change in this area, particularly to augment protection for domestic separation of powers and democratic participation in treaty making in South Africa and beyond.
The South African Constitutional Court has emphasised the significance of our ‘uniquely South African model of the separation of powers’. But this does not account for 'ombud-like' institutions such as the Public Protector, and Human Rights Commission, and the National Prosecuting Authority. These bodies exercise vital public powers and functions and serve as ‘checks’ against abuses of state power. But they too need checking. There is thus is a disjuncture between the arguably anachronistic conception of the separation of powers, and the actual exercise and checking of power in our modern system of government. The considers recent case law of the Court to illustrate the impact that these institutions are having – but without the requisite guiding and legitimating framework. What is needed is the formal constitutional recognition of a 4th branch of state, the 'Integrity Branch,’ to ensure enhanced effectiveness of these institutions and the overarching democratic project.