Constitutional law is more than just an academic topic for Evjue-Bascom Professor of Law Heinz Klug. Growing up in South Africa, he fought against apartheid, escaped an assassination attempt and lived in exile for 11 years before returning home to help build a new democracy. As a young researcher for the chair of the African National Congress’ constitutional committee, he had a front-row seat for the creation of South Africa’s first post-apartheid constitution.
“I’m most proud that I spent a good part of my life fighting against apartheid,” he says. “Having experienced and witnessed the injustice of that system, I have a deep sense of how important justice is.”
That pivotal time continues to shape his work as a legal scholar. Klug recently won the 2018 Sheldon B. Lubar Distinguished Research Chair in Law, a competitive award that grants a UW Law professor a semester’s leave to advance his or her research. Klug will use the time in the fall of 2020 to concentrate on two book projects on constitution-making in post-colonial Africa.
“This chair is an extraordinary opportunity for faculty who’ve got projects that they need time to work on,” Klug says. “It also strengthens teaching. That relationship between research and teaching isn’t always recognized as much as it should be, but research gives a depth to one’s ability to teach.”
Klug has long been fascinated by constitution-making. His first book, “Constituting Democracy,” which was published in 2000, focused on the making of South Africa’s constitution as it transitioned from apartheid to democracy. During his Lubar Chair leave, Klug plans to finish another book on South Africa’s post-apartheid constitutions and then start a new book exploring constitution-building in post-colonial states across Africa. He’s particularly interested in the role of lawyers and legal institutions in the constitution-making process.
“The central hypothesis is that legally trained members of nationalist movements have played key roles in the embrace of constitutionalism,” Klug explains.
Klug is focusing on Ghana, Nigeria, Kenya, Botswana, Mauritius, Zimbabwe and Namibia, all of which created new constitutions between 1957-1996. “These cases also provide an important counterpoint to the assumption that the embrace of constitutionalism will ensure a sustainable rule of law since these countries now have post-colonial histories in which the commitment to the rule of law has varied over time,” he notes.
During his leave, Klug plans to visit archives and conduct interviews in several African countries and in Britain, which is home to a wealth of material on the decolonization process.
It was common for fledgling African nations in the decolonizing process to work with the same group of people in the London colonial office, he notes. “There was very little input from the public. So one of the questions I’m interested in is how deep are these constitutions? What’s the commitment of the people in these countries to these constitutions? Are these constitutions produced in London and they’re just a way to produce independence?”
During the 1960s and 1970s, several African nations experienced a series of coups, and “people didn’t come out in the streets to defend the constitution because it wasn’t theirs,” he says.
Public participation in constitution-making became more prevalent during the 1990s, and Klug is interested in how that influenced the process. “There’s an interesting dynamic between the people’s voice and the people who are shaping that voice. And that doesn’t just mean lawyers — it’s also activists, political leaders and others,” he says.
Much of Klug’s research involves original documents that are not yet online, so he is also collaborating with a colleague in South Africa and the UW Law School Library to create a virtual archive.
“It would be really useful for other researchers to be able to access these documents,” he says.
Submitted by Law School News on March 28, 2019