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 Expanding Constitutional “Dialogue”

A lesson from South Africa.

 By Iain T. Benson

A highly significant public ceremony occurred on Thursday, October 21, 2010 in Johannesburg. It was the signing by all major (and many minor) religions in South Africa of the South African Charter of Religious Rights and Freedoms (“SACRRF”). This Charter, once passed into law, will be the first use of an interesting provision that is in the Constitution of South Africa (section 234), the principles of which ought to be reflected upon more in Canada. Section 234 is designed to give civil society organizations the chance to take a direct role in constitutional development. It provides that “in order to deepen the culture of democracy established by this Constitution, Parliament may adopt Charters of Rights consistent with the provisions of the Constitution.” For the last couple of years numerous meetings and drafts led up to the Charter signing and the second phase, now ongoing, involves negotiation with the government to bring the SACRRF into law.

The role that religions could play in relation to the ongoing formation of the South African Constitution was understood early on by the recently retired Honorable Justice Albie Sachs when he wrote:
Ideally, in South Africa, all religious organizations and persons concerned with the study of religion would get together and draft a charter of religious rights and responsibilities. …it would be up to the participants themselves to define what they consider to be their fundamental rights.1

It is assumed that legislation passed under this provision will be accorded a kind of “super statutory” status though there are, obviously, no other examples in existence and no litigation in relation to this provision.

Though Canada’s Constitution does not contain a provision like section 234, perhaps the possibility of civil society contributing a “third voice” (or additional civic voices) to the process of constitutional interpretation and development could be encouraged in Canada by other means. A more direct encouragement of civic involvement would go some way to narrowing the problematic aspects of development through litigation where, for a variety of reasons (parties, narrowness of issue, time-constraints and costs), ad hoc development has significant drawbacks.

What has occurred may be of great importance not only within South Africa but in many other countries as well since the principled extension of constitutional development to the wider citizenry cannot but add to greater understanding and co-operation (as has been seen in South Africa) between groups. The process, document and meetings have shown that religions can cooperate at a high level of sophisticated and mature discussion and that principles important to each religion can be shared and recognized as important to all religions.2  

1 A. Sachs, Protecting human rights in a new South Africa. Contemporary  South African Debates (1990), at46-47.
2 The text of the South African Charter as signed, and a longer article by the author, putting it in context, may be located at: at pages 130-134.


Iain T. Benson – B.A. (Hons), M.A., J.D., Ph.D. (cand.). Barrister & Solicitor, Senior Associate Counsel, Miller Thomson LLP, Toronto, Canada.; Of the Bars of B.C. and Ontario, Extraordinary Professor of Law, Department of Constitutional Law, Faculty of Law, University of the Free State Bloemfontein; Research Associate South African Institute For Advanced Constitutional Human Rights, Public and International Law Johannesburg. The author was one of the drafters of the Charter that is the subject of this article and is now an advisor to the Council for the Promotion and Protection of Religious Freedom that has been formed for the next phase of the Constitutional development to which reference is made. Address for correspondence:


This article was published in the October 2011 issue of BarTalk. © 2011 The Canadian Bar Association. All rights reserved.


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