Remembering Nelson Mandela: The President & the Rule of Law: Euro Rights Blog by Richard Edwards

Nelson Mandela was in so many ways an example to us all. Yet in addition to his manifest qualities as a great man for lawyers and politicians it is worth remembering Mandela’s attitude as president towards the then freshly drafted interim constitution and the new Constitutional Court that it established.

In Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC) the Constitutional Court was faced for the first time under the post-apartheid constitution with a direct challenge to presidential action. The case turned on whether the legislature could delegate to the executive the power to amend laws. In other words, could a presidential proclamation amend an Act of Parliament? In the event the Constitutional Court held that s.16A of the Local Government (Transition) Act was itself constitutionally invalid and thus so too were the proclamations.

This case, as several commentators have observed, was the first real test of the ANC’s commitment to the rule of law and the new constitution. How would the president react? In a now famous statement President Mandela publicly accepted the decision:

The judgment of the Constitutional Court confirms that our democracy is taking firm root and that nobody is above the law. This is something of which we should be proud and which the whole of our country must welcome.

This act of statesmanship should be a model to all politicians who profess a belief in the rule of law. The contrast with contemporary British politicians who call for open defiance of the European Court could not be more marked.