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7 Afr. J. Int'l & Comp. L. 222 (1995)
Birth of a Constitution

handle is hein.journals/afjincol7 and id is 232 raw text is: 222 Book Reviews - Critique Bibliographique Birth of a Constitution. Edited by Bertus de Villiers. Published by Juta & Co. Ltd. 432 pages including index. Price: R124,50. Soft Cover. Birth of a Constitution is a joint effort by 20 scholars whose contributions range from the process of negotiations between 1990 and 1993, to the principles enshrined in the Interim Constitution itself, and finally, there is a theoretical analysis of the constitution as to whether it is a federal or unitary constitution. The essays on the negotiations leading to the Interim Constitution and the difficulties encountered are now largely of historical interest and will not be the subject of this review. Bertus de Villiers starts the discussion with a consideration of the consti- tutional principles. The Constitutional Principles were accepted on 2 July 1993 by the Negotiating Council of the Multi-Party Negotiating Process as a set of twenty-seven Constitutional Principles which the transitional constitution and its successors will have to comply with. A further set of six principles were added to the list on 17 November 1993, bringing it to thirty- three. The aim of the principles is to ensure that democratic principles are upheld. Among the more important of the principles are the provision for Sover- eignty of the constitution, the Rule of Law, the independence of the judiciary and the role of the courts as the guardians of the constitution. There are also provisions for the separation of powers and for the representation of the people through general elections on the basis of proportional representation. What makes the South African Constitutional principles stand out, in comparison to other constitutions, is that the principles are very detailed and are almost all justiciable. There may be some danger in this attempt to make the courts available to all on all issues, for the courts might simply become over-politicised. What appears to be of concern to the contributors however, is whether the Interim Constitution is federal or unitary. Three essays are devoted to this subject. In the first essay, Daniel Elazar argues that federal arrange- ments rest on three important items, (1) a constitutional pact, (2) non- centralisation, and (3) negotiated bargaining within the constitutional framework. According to Elazar, the Interim Constitution makes some provision for all these and therefore leans more towards a federal consti- tution. He argues further that the Preamble of the constitution provides that the constitution is a pact among equals and second, that the consti- tution recognises the pluralism and the multi-culturalism of South Africa. Third, Elizar thinks the constitution is federalistic because it provides for provincial government. It is not altogether certain that the conditions set out above necessarily make a constitution federal. Most of the items mentioned are found in many unitary States. Although the Interim Constitution was negotiated

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