Why the Constitution is so important

In 1996, after two years of public consultation and debate, we adopted our new Constitution, which states that SA is a constitutional democracy. This means that the Constitution is the supreme or highest law of the land and that everyone in SA must act according to the Constitution. The rules which protect our democracy are in our Constitution.

Under the old system, Parliament was supreme and could make any law it wanted, even if the law took away people’s basic human rights. This can no longer happen because the Constitution is supreme and will not allow the government to make laws that are unjust.
Not even the President can act against the Constitution, and nor can Parliament pass a law which contradicts the Constitution.

What is a Constitution?

A Constitution is the document that sets out the rules about how the country must be run.
Our Constitution has three main functions: it sets out the system of government and says how the country must be run; it protects the rights of citizens; and it protects democratic principles.

Making the rules for government
The Constitution says how government should be run; for example, it sets out the powers of Parliament, the President and Ministers, the courts, and so on.

Protecting the rights of citizens
Chapter Two of the Constitution contains the Bill of Rights which protects the rights of all our citizens. There are different kinds of rights in the Bill of Rights:

• Political rights including the rights to freedom, equality and dignity, the right to free speech, the right to organise, and the right to vote in elections. These are the normal rights that occur in all democratic Constitutions all over the world, and ensure democracy and freedom.
• Socio-economic rights: In SA, where a large part of the struggle for freedom was the struggle to improve the lives of people, these rights are important because they place a duty on the government to try to solve the many problems that people have about education, health, water and housing.
• Rights such as the right to a protected environment, the right to information and the right to fair administrative action. By putting these rights in our Constitution, SA leads the world. The Constitution also sets up several independent bodies to help citizens enforce their rights - for example the Human Rights Commission, the Public Protector and the Gender Equality Commission.

Protecting democratic principles

The Constitution sets out and protects certain important democratic principles:

• SA is a democracy - this means that there must be regular elections in which all citizens can vote for the government of their choice.
• The Constitution itself is protected, which is why it is much more difficult to change the Constitution than to pass an ordinary law.
• Independent courts protect and enforce the Constitution - the courts are very powerful because they can tell even the President or Parliament that they are not abiding by the Constitution.
• There must be a separation of powers - the power of the State is divided into three arms:
  1. The Executive consists of the President and the Ministers in the Cabinet. The Cabinet is in charge of the government and has the power to run the country, but the Ministers cannot do as they want. They have to govern the country according to the laws made by Parliament.
  2. The Legislature, or Parliament, consists of the elected representatives of the people. The main task of Parliament is to make laws and ensure that the Ministers do their work properly.
  3. The Judiciary or the courts alone can decide that someone has broken the law, and how they must be punished. To ensure that people are treated fairly, the Constitution says that the courts must be independent from Parliament which makes the law and the Ministers who apply the law. Although each arm of government is separate and may not interfere in either of the other arms, the Constitution says that they must co-operate in mutual trust and good faith.

The Constitution belongs to the people of SA and is there to protect you. This is why it is so important to know your rights and to understand what work Parliament is doing and how. The word ‘Parliament’ comes from the word ‘to speak’ – and it is here that the voices of all the people of the country are heard through their elected representatives.

Every voice is important. See how you can participate in holding those in power accountable.

The Constitution names 7 government institutions to protect citizens from abuse by the government, referred to as the protection mechanisms. They are also called the 'state institutions supporting constitutional democracy' in the Constitution. The institutions are:

• The Public Protector
• South African Human Rights Commission (SAHRC)
• Commission on Gender Equality (CGE)
• The Auditor General
• Independent Electoral Commission (IEC)
• Independent Communications Authority of South Africa (ICASA)

Land Claims Commission (LCC)
People can also take cases about human rights abuses to the magistrate's courts and High Courts, where you can represent yourself but usually you would need to pay a lawyer to prepare the papers and send them to court. This costs a lot of money. The protection mechanisms are free, and you can send in their complaint to be investigated without having to go to a lawyer.

The Land Claims Commission has been set up to protect people's land rights under Section 25 of the Bill of Rights.