“Human dignity shall be inviolable.” The first article of the Basic Law contains a core element of the German constitution. Human dignity, individual freedom and equality before the law, as well as the decentralization of state power, are values that give the Basic Law a strong legitimacy — values that are also highly regarded on the African continent, constitutional expert and former Christian Democrat parliamentarian Ulrich Karpen told Deutsche Welle (DW). The legal system of the Republic of Germany is regarded as highly successful and has inspired a number of African constitutions, he said.
Karpen was one of three German constitutional experts who advised the South African constituent assembly after the end of apartheid in 1994. He told DW the German team had sought to give the South Africans advice based not on party affiliations but focused rather on a non-partisan understanding of the constitutional idea and spirit.
Between 1994 and 1996, South Africa had an interim constitution which guaranteed equal rights for all citzens and which laid the ground for the reintegration of the so-called homelands – territories reserved under apartheid for various ethnic groups – into the new South African state. The final constitution went into force in February 1997.
Parallels between South Africa and Germany
James Fowkes, a South African professor of international law at the University of Münster in Germany, recalls that the first justices of the South African post-apartheid Constitutional Court met for the first time in the German city of Karlsruhe, seat of the German Constitutional Court, on the invitation of the German government. “There was certainly great interest in supporting the South African project,” he told DW. “The drafting of the text was a local affair but it was these kinds of informal connections that were often very important in bringing ideas in.”
One of the South African judges at that meeting in Karlsruhe was Johann Kriegler, now retired. “Before the South African Constitutional Court heard its first case, all the justices of the court spent ten days in Germany. It was a very fruitful and educative time and we learned skilled adjudication of constitutional issues from our German colleagues,” he recalled.
Fowkes sees a clear parallel between postwar West Germany in the 1940s and South Africa after the end of apartheid in the 1990s. “I think both systems understand their constitutions as a response to this kind of world historical evil and it's one of the things that really influenced the South African case. It has some appeal in other African countries as well but the historical parallel is less direct,” he said.
German constitution marked 'a new beginning'
South Africa had recognised that the successful emergence of the Republic of Germany would not have been possible without the stable foundation of the Basic Law, says Ulrich Karpen. The South Africans also wanted to mark the end of an era, the era of colonialism, and sought to establish a form of order that had proved to be successful in other parts of the world. “In the eyes of these countries, that applied to Germany,” Karpen said.
Germany had succeeded, in the years following the Hitler dictatorship, to open a new chapter of democracy and rule of law. The Basic Law impetus of 'never again' inspired the work on the constitution in South Africa, says James Fowkes. And this in turn had an influence elsewhere in Africa. “For instance the Kenyan constitution borrows quite a lot from the South African constitution and so borrows from Germany indirectly,” Fowkes said.
In addition to South Africa, German constitutional expert Ulrich Karpen also acted as an advisor to Namibia and later Ethiopia. He points out that Germany was also involved in other African countries, such as Cameroon, Tanzania and Malawi. For instance, there is a clear link between Article One of the German Basic Law (“Human dignity shall be inviolable”) and Chapter Three of the Malawian constitution which says: “The inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect fundamental human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote.”
The strength of federalism
High up on the list of ideas adopted by other countries is “the supervisory function of the constitutional court as well as the principles of federalism,” Karpen said.
“In South Africa there are provinces. Here in Germany there are federal states which have their own life within the framework of the country. This should be reflected in the constitution and should accord the states, provinces and cities space to develop. This is how it is in the Republic of Germany, in the United States of America and also in South Africa.”