Establishing a New Constitutional Court for South Africa: Adapting the Common Law to Reflect a Democratic Criminal Justice System

One of the central features of South Africa\u27s transition from apartheid to a constitutional democracy was the establishment of a new Constitutional Court with the power first to approve the new Constitution and then to interpret and enforce its provisions, including the expansive Bill of Rights. Justice Richard J. Goldstone was appointed by President Nelson Mandela to the new Court and participated in many of its early decisions. He will discuss the complex issues involved in establishing a new apex court for post-apartheid South Africa with a particular focus on how it shaped a new democratic criminal justice system. Among his discussion points, he will address the constitutionality of the death penalty--a highly contentious issue in the constitutional negotiations that resulted in an equally contentious decision by the Court; the presumption of innocence; and crimes relating to gender and sexual orientation. During South Africa’s transition from Apartheid to democracy in the early 1990s, Justice Goldstone served as the chairperson of the Commission of Inquiry Regarding Public Violence and Intimidation, which came to be known as the Goldstone Commission. His judicial career includes appointment to the Transvaal Supreme Court in 1980 and later to the Appellate Division of the Supreme Court of South Africa. After serving as the first chief prosecutor of the United Nations\u27 International Criminal Tribunals for the former Yugoslavia and Rwanda, Justice Goldstone returned to South Africa and was appointed a judge of the Constitutional Court in 1994, remaining on the court until 2003. Justice Goldstone is the recipient of many prestigious awards, including the MacArthur Award for International Justice, the International Human Rights Award of the American Bar Association, and Honorary Doctorates of Law from universities around the globe. Since 2004, Justice Goldstone has taught as a visiting professor of law at Harvard Law School, New York University School of Law, Fordham University School of Law, and Georgetown Law School among others