Constitutionalism and transitional justice in South Africa / Andrea Lollini ; translated by Alexandra Tatiana Pollard.
2011
KTL2101 .L6513 2011 (Map It)
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Details
Author
Title
Constitutionalism and transitional justice in South Africa / Andrea Lollini ; translated by Alexandra Tatiana Pollard.
Uniform Title
Costituzionalismo e giustizia di transizione. English
Published
New York : Berghahn Books, 2011.
Call Number
KTL2101 .L6513 2011
Former Call Number
So.Af 910 L837 2011
ISBN
9781845457648 (hardback : alk. paper)
1845457641 (hardback : alk. paper)
1845457641 (hardback : alk. paper)
Description
xv, 221 pages ; 24 cm.
System Control No.
(OCoLC)555673149
Summary
Originally published as "Costituzionalismo e giustizia di transizione" in 2005.--T.p. verso.
Bibliography, etc. Note
Includes bibliographical references (pages [181]-211) and index.
Series
Record Appears in
Added Author
Table of Contents
Foreword / Roberto Toniatti
ix
List of Abbreviations
xiv
Introduction
1
Preliminary Remarks
1
Post-apartheid Constitutionalism: Continuity and Discontinuity with Tradition
3
Continuity
4
Discontinuity: the Peculiarities of Post-apartheid Constitutionalism
6
The Establishment of the Post-apartheid Constitutional System
8
pt. I
The Constitution-making Process and Procedure
17
ch. 1
Constituent Facts
19
Apartheid's Legacy and Constructing the New Political Body's Unity
19
Unity as Collective Acceptance of Post-apartheid Constitutional Principles
21
The Dogma of National Unity, Common Citizenship and the Political Myth of the Rainbow Nation
22
Unity through the Technique of (Pre-)Constitution-making Negotiations: a Clash between Different Theories
26
African National Congress's Universalist Constitutionalism
29
National Party's and Inkatha Freedom Party's Relativist Constitutionalism
30
Unity through Fragmentation of the Constituent Act
31
Phases Dominated by Constituent Facts
33
The First Phase: Removal of Obstacles
34
The Second Phase: Political Violence and Transition Obstacles
36
ch. 2
Constituent Acts
49
Multiparty Assemblies: Gradual Predominance of Constituent Acts
49
Interim and Definitive Constituent Acts
52
Deciding Who Decides
53
The Constitutional Principles
55
The Bill of Rights
57
A Break from the Past
59
The Genesis of the Truth and Reconciliation Commission
61
The Institution of the Constitutional Court: the Paradox of a Constituted Body Co-participating in the Constituent Process
63
The Different Forms of Judicial Review Procedures
64
The Constitutional Court's Constituent Influence
67
The Conclusion of the Constitution-making Procedure
70
Notes on the Post-apartheid State and Government Forms
73
The Post-apartheid Constitution as a Peace Treaty
74
pt. II
The Constituent Role of the Truth and Reconciliation Commission
93
ch. 3
The Constitutional Suspension of a Strictly Criminal Approach
95
Introduction
95
The Functioning of the TRC
97
The Human Rights Violation Committee, Investigation Units and Public Special Hearings
99
The Amnesty Committee
100
Temporal and Subject Matter Jurisdiction
103
Amnesty Hearing Procedure
107
The Relationship with Criminal Justice: Separation and Complementarity
109
The Impact of the Amnesty Process: Questioning Numbers
112
The Full Disclosure of All Relevant Facts and the Idea of ̀Truth'
116
Constitutional Suspension of a Strictly Criminal Approach for Political Crimes Committed under Apartheid
120
Individual Volition as a Premise for the Suspension of a Strictly Criminal Approach
122
Post-TRC: Suspension or Definitive Cancellation of Criminal Justice for Political Crimes under Apartheid?
122
The Problems of Using a Criminal Approach during Regime Transitions
125
Post-conflict Justice in Europe between Hypertrophy of History and Law
128
Notes on Post-conflict Justice and Political Transitions Outside of Europe
132
ch. 4
Confession as a Strictly Constituent Act
152
Introduction
152
The TRC and the Constitution-making Process
153
The Strictly Temporal Link
153
The Formal and Legal Link
154
The Material Link
156
Confession as a Strictly Constituent Act
158
Full Disclosure
158
The Attributes of the Confession
160
Confession as an Act of Capitulation
160
Confession: the Constitution and Preservation of a Community's Unity
163
Amnesty as a Non-automatic Provision: Counterbalancing the Right to Pardon
166
Confession and Truth
167
Conclusion
177
Confession, Constituent Pact and an Àbsolutist' Communitarian Constitutionalism
177
Bibliography
181
Index
213