from Africa in Transition

Arthur Chaskalson: An Architect of Democratic South Africa

December 05, 2012

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Lawyers can be improbable heroes, but Arthur Chaskalson was one.  He used the law to hobble apartheid and subsequently helped author a post-apartheid legal system that subordinated the parliament to the constitution and the rule of law. Arguably that subordination is at the heart of a democratic South Africa and makes it different from many other African countries where the legislature and/or the executive acts above the law. The New York Times quotes Chaskalson as saying, “For the first time, the Constitution trumps parliament.”  Chaskalson died on December 1, 2012, of leukaemia at the age of eighty-one; the South African government is according him a state funeral.

Chaskalson was a white South African who gave up a lucrative law practice to found the Legal Resources Center which fought against apartheid through that era’s courts. For example, he was part of the legal team that successfully used the courts to overturn the apartheid legislation that sought to restrict freedom of movement on racial grounds, in many ways at the heart of apartheid.  He was more famous for being part of the legal team that defended Nelson Mandela and others against treason charges in the Rivonia trials of 1963-4.  Rather than being convicted of treason and almost certainly executed, Mandela was convicted and jailed on the lesser charge of sabotage.

Subsequently, Chaskalson was one of the architects of the post-apartheid constitution which among other human rights protections, guarantees gay rights and gender equality. Accordingly, and unique in Africa, South Africa has recognized same-sex marriage since 2006.

He was president of the Constitutional Court and subsequently chief justice of South Africa. The first major decision of the Constitutional Court was to outlaw capital punishment, a feature of apartheid regime enforcement.

It is the institutional predominance of the rule of law that is basic to South Africa’s exceptional human rights culture.  And Chaskalson made a major contribution to it.