The Constitution

The Constitution

The constitutional reforms of the early 1980s led to four phases of political change that, ultimately, irrevocably transformed the South African political system. First, the 1983 constitution's new political representation for coloureds and Indians made the glaring lack of participation by the country's black majority even more obvious. Even early discussions of the new constitution triggered widespread violent protests by antiapartheid activists. The escalating violence prompted the government to impose a series of states of emergency and forced both the government and many citizens to realize that promising future political reform regarding black political participation would no longer suffice; sweeping political reforms would be necessary, and the need for such reforms was becoming increasingly urgent.

The second phase of change was a series of secret meetings between NP officials and imprisoned ANC leaders. These began in July 1984, after Minister of Justice Hendrik "Kobie" Coetsee (representing President P.W. Botha) paid several unpublicized visits to ANC leader Nelson Mandela, who was then serving the twenty-first year of a life prison sentence. The government formalized these visits in May 1988 by establishing a committee to handle government contacts with Mandela and with other imprisoned or exiled ANC leaders. On July 5, 1989, in response to Mandela's request for high-level discussions of a possible negotiated settlement to the ANC's armed struggle, Botha and Mandela held their first face-to-face talks.

Botha resigned from office, owing to ill health, in August 1989, and in December, Mandela suggested a "road map" for future negotiations to the new president, F.W. de Klerk. Mandela's proposal outlined a power-sharing plan for the NP and its political rivals and embraced the spirit of compromise that would be needed to weather the political turbulence that lay ahead.

These talks led to the third, and most transforming, phase in recent politics, beginning with de Klerk's historic speech of February 2, 1990, in which he legalized more than thirty antiapartheid organizations; ordered the release of eight long-term political prisoners, including Mandela and ANC deputy president Walter Sisulu; removed many emergency regulations concerning the media and political detainees; and announced his intention to negotiate a new democratic constitution with his political opponents. In October of that year, the parliament took a symbolic step toward reform by repealing the Separate Amenities Act, an important legislative pillar of apartheid.

The fourth phase in the political transformation occurred as the NP government and the ANC leadership began to recognize their mutual dependence and the need for cooperation and compromise in embarking on constitutional negotiations. In this phase, their previously adversarial relationship was transformed through their discussions and their agreement on three accords--the Groote Schuur Minute (May 1990), the Pretoria Minute (August 1990), and the D.F. Malan Accord (February 1991). In these accords, ANC leaders pledged to suspend the armed struggle, the government agreed to release all political prisoners, and both sides agreed to pursue political reform through negotiation. On September 14, 1991, representatives of twenty-seven political parties, interest groups, and the national and homeland governments signed the National Peace Accord, agreeing to form a multiracial council, later called the Transitional Executive Council (TEC), to serve as temporary executive authority until democratic elections could be held.

Nearly three months after the signing of the historic peace accord, preliminary negotiations to agree on procedural rules began at the World Trade Center outside Johannesburg, as the Convention for a Democratic South Africa (Codesa). In September 1992, Mandela and de Klerk reached a Record of Understanding, formally committing both sides to accept a democratically elected, five-year interim Government of National Unity led by a political coalition. They also agreed that the center of government would remain in Pretoria and that the new state president would be chosen from the party winning the largest plurality of votes in nationwide nonracial elections. Any party that won at least 5 percent of the seats in parliament would be entitled to a place in the cabinet. The transitional, bicameral parliament was to be charged with drafting and adopting a new constitution. The ANC accepted the idea of sharing power with the NP during the transition. Assuming the ANC would win the elections, it would, as the majority party, exercise its prerogative on most matters, and the NP would serve as a junior partner in running the country.

These agreements on the transitional government represented important compromises by both the government and the ANC, and they helped to set new precedents for future negotiations. The NP won agreement on its refusal to give the new state president broad and extensive powers during the transition period. (Under the previous system, the president could override the views of minority parties.) At the same time, de Klerk compromised on his demand for a permanent consensus-style arrangement to be enshrined in any new constitution by agreeing to a five-year transitional government. The arrangement satisfied the NP demand for legally binding checks and balances to protect the country's white minority. The ANC, for its part, compromised on its earlier insistence on full and immediate majority rule, by agreeing to participate in a powersharing arrangement for at least five years. At the same time, many ANC leaders hoped that their party, as the dominant party in the transitional government, would win a sufficiently large majority to enable it to enact most of its policies, even without the consent of other parties.

Supporters on both sides viewed the Government of National Unity as the country's best hope for achieving long-term political and economic stability, for attracting much-needed foreign investment, and for limiting violence by both white and black extremists. One of the main criticisms of the proposed coalition government was that with the two major political rivals entering into a governing alliance, their small-party opponents would have little political maneuverability and would be forced into extraparliamentary protest.

By early 1994, a number of problems remained unresolved. The most crucial was the need to establish a broad consensus among the political parties over the basic principles to be embodied in a new constitution. The negotiators had yet to reach agreement on the powers and the functions of the three commissions responsible for overseeing the transition--the TEC, the Independent Electoral Commission (IEC), and the Independent Media Commission that would be charged with ensuring media fairness. Other problems concerned the operations of the interim government--such as joint ANC-NP control over the country's security forces and the integration of the ANC's and PAC's paramilitary wings into the new national army.

The ANC and Inkatha still had to resolve their civil war in Natal and KwaZulu, where more than 10,000 people had been killed in a decade of ethnic and political violence. The large Zulu population (of about 8 million) was split between supporters of the ANC and Inkatha, and Inkatha itself was split between the conflicting interests of IFP leader Buthelezi and the traditional Zulu monarch, King Goodwill Zwelithini.

The Interim Constitution

The interim constitution--The Constitution of the Republic of South Africa, 1993 (Act No. 200)--was ratified on December 22, 1993, and implemented on April 27, 1994. It provides a framework for governing for five years, while a new constitution, to be implemented by 1999, was drafted by the Constitutional Assembly. The final constitution had to comply with the principles embodied in the interim constitution, including a commitment to a multiparty democracy based on universal adult franchise, individual rights without discrimination, and separation of the powers of government.

The interim constitution consists of a preamble, fifteen chapters containing 251 sections, and seven attachments. It contains a chapter on fundamental rights, and it requires a constitutional court to invalidate any new law or government action that might unreasonably restrict these basic human freedoms. The guaranteed freedoms include the right to life and human dignity, freedom of religion, freedom of expression, the right of free association, language and cultural rights, and other internationally accepted human rights. Key provisions are proportional party representation in the legislature with representatives to be selected from lists of party delegates; a bicameral parliament comprising a 400-seat National Assembly and a Senate consisting of ten members chosen by each of the nine provinces; and a Constitutional Assembly made up of both houses of parliament. The interim constitution requires that the draft of the final constitution be prepared within two years and that the draft be approved by two-thirds of the legislators and by the Constitutional Court.

The interim constitution also defines the government's authority; reaffirms its sovereignty, the supremacy of the constitution, and existing national symbols; and defines the national executive (a president, at least two deputy presidents, and the cabinet), the judicial system (the Constitutional Court, the Supreme Court, and lower-level courts), the Office of the Public Protector, the Human Rights Commission, the Commission on Gender Equality, the Commission on Restitution of Land Rights, and the Public Service Commission. Further provisions relate to the police and security establishment; the continuation or repeal of existing laws and international agreements; and arrangements for legislative, executive, public service, legal, financial, and other administrative bodies. Schedules attached to the interim constitution describe the nation's nine new provinces, including areas still under contention; the electoral system; oaths and affirmations of office; the procedure for electing the president; and the authority of provincial legislatures.

Drafting a Final Constitution

On May 8, 1996, the Constitutional Assembly completed two years of work on a draft of a final constitution, intended to replace the interim constitution of 1993 by the year 1999. The draft embodied many of the provisions contained in the interim constitution, but some of the differences between them were controversial. In the final constitution, the Government of National Unity is replaced by a majoritarian government--an arrangement referred to by its critics as "winner-take-all" in national elections. Instead of requiring political parties to share executive power, the final constitution would enable the majority party to appoint cabinet members and other officials without necessarily consulting the minority parties that would be represented in the National Assembly.

The draft final constitution in 1996 also proposes changes in the country's legislative structure. The National Assembly would continue to be the country's only directly elected house of parliament, but the Senate would be replaced by a National Council of Provinces. Like its predecessor, the new council would consist of legislators chosen to represent each of the country's nine provinces. The new council would include some temporary delegates from each province, however, so some legislators would rotate between the National Council of Provinces and the provincial legislatures from which they were chosen.

Negotiators in the early 1990s had agreed that the 1996 draft constitution would be submitted to the Constitutional Court to ensure that it conformed to agreed-upon constitutional principles, such as the commitment to a multiparty democracy, based on universal franchise without discrimination. In May 1996, however, the Constitutional Court did not immediately approve the draft as received; instead, it referred the document back to the Constitutional Assembly for revision and clarification of specific provisions. Chief among its concerns were the need to clarify references to the powers that would devolve to the provincial legislatures and the rights of organized labor and management in an industrial dispute. The Constitutional Assembly was revising the draft constitution as of mid-1996.

Even before it was approved or implemented, the draft constitution had an immediate impact on the structure of government in 1996. Just one day after the draft had been completed by the Constitutional Assembly, the National Party declared its intention to resign from the Government of National Unity, effective June 30, 1996. In the weeks leading up to the NP's formal departure from the executive branch, NP leaders repeatedly tried to assure voters that the party would play a constructive role in politics as a loyal critic of the ANC-led government. President Mandela, too, accepted the NP departure as a sign of a "maturing democracy." NP legislators continued to serve in the National Assembly and in the Senate.

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