The Transkeian constitution: manifestation of diffusion and rediffusion of constitutional technology or Westminster transplanted?

Abstract

With the written constitution now nearly universal, it's effectiveness is gravely doubted. Today the state as an institution stands supreme and although the function of a constitution in the life of the state is uncertain, it is regarded as an almost inseparable part thereof. Constitution and constitutionalism has parted, disowning numerous westernised institutional traditions. The Transkei constitution is to a large extent a borrowed one, and therefore it should be seen against the background of British and South African Constitutional law and theory. However, the failure of Westminster systems in the rest of Africa cannot be ignored.

The constitutional development of Transkei differs considerably from that of colonies elsewhere in Africa. The phenomenon of constitutional autochthony which their independence brought to the fore, poses the question whether this also obtains in the birth of a new state such as Transkei. Whether measured in terms of legal continuity in the constitution‐making process or the national forum in which it becomes enacted or whether it is rooted in indigenous culture and traditions, the Transkei constitution cannot be labelled outochtonous.

Formally almost all power is vested in the President but in effect it is to be exercised by the other organs of state, an arrangement conducive to conflict. Effective government demands integrated leadership. A precariously balanced dual executive system would be most unsuitable in the case of Transkei. Neither should the position of the President be seen as a fourth power balancing and controlling the other organs of the state. If he fails to become a unifying symbol of state and nation, nothing but form will remain making him an extension of the executive and a scribe of parliament.

Conforming to modern trends, the unicameral parliamentary assembly, styled a National Assembly, is composed of elected and non‐elected traditional tribal leaders. In the Transkei constitution the doctrine of parliamentary sovereignty is enacted but this English constitutional myth may be safely discarded for the more realistic view that the assembly adds dignity rather than capacity. If one adheres to this theory, one is sure to end up with the sovereignity of the executive.