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18 JEMIE 1 (2019)

handle is hein.journals/jemie2019 and id is 1 raw text is: 





        V                 Journal on     Ethnopolitics   and   Minority   Issues   in  Europe
        JE        IE      Vol 18, No 1, 2019, 1-19.

                           Copyright © ECMI 2019
                           This article is located at:
                           http /www.ecmi.de/fileadmin/downloads/publications/JEMIE/201
                           9/DeVilliger 2019.pdd




The Utility of Comparative Constitutional Law - the Practical Contribution
by South Africa to a World Searching for Consistency in Democratic
Practices

Bertus de Villiers*





Law School University of Johannesburg



Abstract

         The Constitution of South Africa, which was enacted in two phases with an interim
         constitution in 1993 and a final constitution in 1996, has served as a stimulus and
         encouragement to other emerging democracies involved in constitutional reforms.
         Several aspects of the South African constitution have attracted international interest.
         In this article the question is asked, with reference to South Africa, whether
         comparative constitutional studies contribute to new standards in international law
         and practice. The two areas that are the focus of this article are firstly the abolition
         of the death penalty in South Africa and the way in which the Constitutional Court
         relied on international literature and jurisprudence to reach its conclusion. Secondly
         the South African experience with coalition government according to the
         consociational theory is considered and how the experiences of the transitional
         government of national unity has informed mandated coalition developments in
         Northern Ireland and Kosovo. The article concludes that the South African
         constitution has contributed to the development of international law and to
         international state constitutional law, particularly in the areas of protection of human
         rights and mandatory coalition government according to consociational principles.
         The constitutional court not only utilized international jurisprudence and literature
         in its reasoning to abolish capital punishment, it also contributed to developing
         international law by concluding that capital punishment is cruel and inhuman; not
         consistent with the right to life; and not an acceptable form of punishment in a
         democratic society. The government of national unity has highlighted how
         consociational principles can be applied to establish a mandatory power-sharing
         executive, even if just for a limited duration. The government of national unity was
         based on participation by political parties rather than specific communities and



 Correspondence details. Bertus de Villiers. Visiting Professor, Law School University of Johannesburg. Email:
 Bertus.DeVilliers @justice.wa.gov.au.

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