ABSTRACT
This chapter explores the limits of the principle by addressing the tension between public participation and the right to life in the context of South Africa's democratic transition and constitution-making processes. It focuses on the death penalty as a means of exploring the tension between participation and unpopular causes or segments of the society. Recognition that public opinion seemed to favor the retention of the death penalty posed a distinct problem for the fledgling Constitutional Court as it set out to establish its place and legitimacy as a new and unique institution in the South African legal order. Participation in South Africa's constitution-making process took place at multiple levels over the course of the political negotiations towards an interim constitution and during the period of the Constitutional Assembly that produced the final 1996 post-apartheid Constitution. While there is a long tradition of elite pacts producing constitutional regimes, the question has always come down to legitimacy.
