Southern Africa

The Canada/South Africa Constitutional Litigation and Legal Development Project supported the Legal Resources Centre (LRC), South Africa’s leading public interest legal organization, to bring test case litigation. The purpose: to assist in defining the rights protected in the Charter of Fundamental Rights of the post-apartheid South Africa constitution. A voluntary network of over 200 Canadian lawyers, academics and judges supported LRC with information and research.

In Phase II, the project was expanded to include the Southern African Legal Assistance Network (SALAN), a regional organization of public interest law centres and community legal clinics in Botswana, Namibia, Mozambique, South Africa, Zambia and Zimbabwe. As a result of the successful litigation brought before the Constitutional Court of South Africa, landmark decisions entrenched extensive rights in South Africa. The project was awarded a Canadian International Cooperation Award in 2003: the prestigious SNC-Lavalin Award for Improvement to Social Infrastructure.

mmediately following South Africa's first multiracial, democratic elections in April 1994, a new democratic Constitution, which included a Charter of Fundamental Rights modeled on the Canadian Charter of Rights and Freedoms, came into effect. While the new Constitution guaranteed fundamental rights to disadvantaged people, there was still a need to ensure that a culture of respect for those rights and the rule of law were entrenched, by testing the Constitution through litigation.

In response to this need, the CBA and the Legal Resources Center (LRC) of South Africa collaborated on the design of the Canada/South Africa Constitutional Litigation and Legal Development Project (CLLDP), a three-year 4 million dollar project, approved for funding by CIDA in 1995. The project supported the establishment of a Constitutional Litigation Unit (abbr lang="en" title="Constitutional Litigation Unit">CLU) within the LRC, South Africa's leading public interest legal organization, which had already been involved in a number of significant constitutional cases, responding to the dramatically increasing demand for legal assistance on constitutional issues. During Phase I, litigation undertaken by the abbr lang="en" title="Constitutional Litigation Unit">CLU contributed to the establishment of a critical mass of rights-based jurisprudence in South Africa. The abbr lang="en" title="Constitutional Litigation Unit">CLU also played a leading role as an educational, research and training resource for the legal profession in South Africa.

The work of the abbr lang="en" title="Constitutional Litigation Unit">CLU was supported by the Canadian Assistance Network, a voluntary network of Canadian lawyers, academics and judges with interest and experience in constitutional and human rights issues. In response to specific requests from the abbr lang="en" title="Constitutional Litigation Unit">CLU the members of the Canadian Network provided information and research on constitutional issues based on Canadian and international experience. By 2001 the network numbered over 200 volunteers.

Based on the success of Phase I, and at the request of Nelson Mandela and the then Chief Justice of South Africa, Justice Ismail Mahomed, CIDA renewed the CLLDP for an additional 4 years (eventually extended to 5, bringing the Project to 2004). Under Phase II the Project continued to support the work of the abbr lang="en" title="Constitutional Litigation Unit">CLU and the LRC generally. During this time the abbr lang="en" title="Constitutional Litigation Unit">CLU undertook and won some of the most important and high profile cases taken before the South African courts.

During Phase II the Project also expanded to support the work of the Southern Africa Legal Assistance Network (SALAN) a regional organization of public interest law centers engaged in advancing human rights in their own countries. The CBA sponsored internships from SALAN member organizations to the LRC, provided computer equipment and training to SALAN members, assisted the SALAN to develop a modern web site, funded annual regional conferences, and funded regional projects working on such important topics as the law of HIV/AIDs, women’s rights under customary law, and rights of asylum in the southern Africa region.

In Southern Africa, we work with 10 community legal clinics to provide regional training seminars, internships and technological support - through Internet access - for their work on behalf of disadvantaged communities.  Some of the countries involved include Zimbabwe, Malawi, Botswana, Namibia, Zambia and Mozambique.

Results:

  • Significant litigation has been successfully argued before the Constitutional Court which has led to land mark decisions that have entrenched extensive rights in the new South Africa including: 
    • the right to shelter;
    • the right to privacy;
    • equality for women;
    • the right for children to be free from arbitrary detention;
    • equality for gay and lesbian South Africans;
    • the right for women to be treated equally under matrimonial property regimes;
    • the right to be presumed innocent until proven guilty;
    • the abolition of the death penalty;

A ground-breaking evaluation of the litigation record of the LRB recently confirmed the extraordinary success of this program, stating “it is doubtful that any other CIDA- funded project in a ‘country in transition’ can have made so concrete a difference in helping to mould the institutional landscape”.

  • Public education campaigns have provided important basic information to South Africans about their rights, which have assisted in their understanding that they are entitled to access to justice.
  • Strong professional linkages have been established between lawyers in South Africa and Canada.
  • Lawyers in Canada have become well versed in the legal framework and challenges of human rights lawyers in South Africa and have made a significant contribution to that work.
  • Canadian jurisprudence has been heavily relied on by the South African Constitutional Court in their landmark decisions on the South African Bill of Rights.
  • Young black lawyers in South Africa have completed their articles with the Legal Resources Centre and continued to practice law in this field in South Africa, both within the LRC and in other practices.
  • Clinics in the Southern African region have been involved in internships annually that have assisted in their own capacity to organize their public interest legal practices, using both South African and Canadian experiences.

The impact of this program is evidenced by letters of support written to the Canadian government by President Nelson Mandela and by the late Mr. Justice Ismail Mahomed, Chief Justice of South Africa. The Canadian International Development Agency recently awarded this program the prestigious SNC Lavelin Award for Improvement to Social Infrastructure.