Government and the Constitution

  1. Democratic governments
  2. The South African Constitution
  3. Key sections of the Constitution

  1. Democratic governments

At a very simple level we can describe government as the way societies organise themselves so that people can live together peacefully and collectively share resources like land, schools, roads, water, etc. These resources are often called "public goods".

Democratic governments usually have parliaments or legislatures that represent people. They are elected by the people to make the rules (laws) that everyone has to live by and policies that decide how government programmes will address people's needs.

Government also organises resources that belong to everyone and makes sure that people's basic needs are addressed. People pay taxes to government and the money is used to pay for government services that people share - things like schools, health, roads, housing and water.

The policies, programmes and work of government is coordinated and overseen by an executive (Cabinet). Democracies also have an independent judiciary (court system) that has to judge when people break the law or when there are conflicts between individuals or between people and government.

The separation between the Legislature, the Executive and the Judiciary is usually called "the separation of powers". The Judiciary should be free of direct political control and interference and should work to uphold the democratically adopted laws of the country. The Judiciary can order government to make laws or implement policies to uphold the Constitution or protect the rights of citizens. (For example the Constitutional Court ordered Parliament to make laws to protect the rights of same sex partners.)

  1. The Constitution

South Africa is a constitutional democracy. This means that we have a guiding document called the Constitution that sets down the way government works. The Constitution was the result of negotiations carried out at the beginning of our democracy in the Constituent Assembly. It was adopted in 1996.

The Constitution can only be changed when more than two thirds of parliamentarians vote for an amendment.

The Constitution sets out the values and rights of our society and the rules that government must follow. The Constitution is the highest law in the land and all other laws must follow the principles in the Constitution. So Parliament (which makes laws and policies) and government departments (which implement policies and programmes) must do so within the rules set by the Constitution.

The role, powers and functions of government are set out in the Constitution. The structure of government, and all laws and policies are based on the Constitution.

The Bill of Rights is a very important part of the Constitution and safeguards the rights of all who live in South Africa.

Among the most important rights are:

  • The right to equality
  • The right to a secret vote in free and fair elections
  • Freedom to form political parties, trade unions and other organisations
  • Freedom of expression for individuals and the media
  • The right to information from government
  • The right to get reasons for government decisions that affect you.

Some rights can be limited by other laws as long as the limitations are reasonable and justifiable in a democratic society. For example, freedom of expression can be limited by laws that cover defamation or hate speech.

The Bill of Rights also contain socio-economic rights like the right to access to housing, sufficient food, water, health care and basic education. Government has to provide these "within available resources", and that means these rights are limited to what government can afford.

  1. Key sections of the Constitution

The Constitution has the following key sections:

  • The preamble that commits us to a united and democratic South Africa, based on the values of justice and human rights.
  • Chapter 1 that spells out the role of the Constitution, the values of non-racism and non-sexism, the rule of law and the right of all citizens to vote in regular democratic elections.
  • Chapter 2 contains the Bill of Rights which spells out the rights of people that must be protected and respected by government. These include the right to equal treatment, non-discrimination, freedom of movement and speech, freedom to form and join organisations, freedom of religion and the right to access basic services, education and healthcare.
  • Chapter 3 deals with government at national, provincial and local level and the relationship between them
  • Chapter 4 deals with Parliament, how elections must be held and how laws are made.
  • Chapter 5 deals with the Cabinet, the President and their powers
  • Chapter 6 deals with provincial government
  • Chapter 7 deals with local government and local elections
  • Chapter 8 sets out the role and powers of different courts
  • Chapter 9 deals with other institutions, independent of government, who support democracy such as the Independent Electoral Commission, the Human Rights, Gender and Youth Commissions. It also covers the powers of bodies that monitor government like the Auditor General and the Public Protector.
  • Chapter 10 deals with the Public Service and the role of the Public Service Commission as an independent body that monitors and evaluates the Public Service
  • Chapter 11 deals with security - the defence force, the police and intelligence services.
  • Chapter 12 deals with traditional leaders
  • Chapter 13 deals with finance, taxes, Treasury, the Reserve Bank and the role of the Financial and Fiscal Commission in advising on how government revenue should be divided between national, provincial and local government.
  • Chapter 14 deals with general issues like international agreements, definitions, etc