Negotiating the Constitution (Part Three)

Despite the many years of arduous negotiations and the final Constitution initially being rejected by the Constitutional Court, the process of drafting South Africa’s Constitution is generally considered to have been an overwhelming success. It is often said that the key to effective change is the active participation of the parties involved, and in this regard the Constitutional Assembly did an excellent job. Workshops and consultations with the various affected sectors were organised in order to facilitate the process of public participation and in January 1995 an advertising campaign was launched in all the major newspapers in order to elicit public views on what should be included in the Constitution.

Roelf Meyer, FW De Klerk, Thabo Mbeki & Cyril Ramaphosa

Roelf Meyer, FW De Klerk, Thabo Mbeki & Cyril Ramaphosa

The first refined working draft of the Constitution was published on the 22nd November 1995. More than four-and-a-half million copies of the 63-paged draft Constitu­tion were distributed in tabloid form throughout the country. The public response to the working draft was overwhelming. The closing date for responses was the 20th February 1996.

At the same time behind the scenes a series of bilateral and multilateral meetings were taking place. The meetings didn’t sit well with the public or the media who aware of the discussions, but not what was being discussed. But these meetings were necessary in order to allowing political parties to make compromises without publicly having to betray their constituencies. In the interim, those drafting the Constitution continued amending it based on further research and the discussions of the Constitutional Committee, with the sub-committee working through the Christmas recess in order to make progress on outstanding issues.

The final draft constitution was expected by the 9th May 1996, but by the 15th February there were still 68 outstanding issues that needed to be settled. A major bone of contention was the question of regional autonomy raised by the Inkatha Freedom Party. Another issue was if the existing power-sharing arrangements which gave minority parties a share of cabinet portfolios would still continue following the 1999 elections.  A later survey on the 14th March reflected five issues on which there was deadlock, namely: the death penalty; lockout clauses; education: the appointment of judges; and the Attorney-General.

The fourth edition of the working draft of the Constitution was completed by the 20th March 1996 but, with a number of serious issues outstanding, it became clear that it would be extremely difficult to adopt the constitution by the May deadline. As a result the negotiating parties accepted a proposal to hold a multilateral meeting in an isolated location over the course of several days, facilitated by experts.

The discussions, which were held in Arniston in the Western Cape between the 1st and 3rd April 1996, proved extremely successful. An excited Cyril Ramaphosa stated, “It defies logic, all parties are happy with their scores – it’s a win-win situation for everybody”. A similar statement was made by the National Party’s Roelf Meyer, who said, ‘The outstanding items have been reduced to only a few”. However, the few remaining issues proved to be serious enough to throw into question the adoption of the final constitution by general consensus. The issues of the death penalty, education, and lockout procedures remained unresolved.

President Nelson Mandela signs the country's new constitution, while Cyril Ramaphosa looks on, 10th December 1996

President Nelson Mandela signs the country’s new constitution, while Cyril Ramaphosa looks on, 10th December 1996

Determined, the negotiators pushed forward, and on the 15th April the fifth edition of the working draft was produced, with the final text being adopted on the 8th May 1996. When the Constitutional Court found that the text failed to comply with the 34 Constitutional Principles it was amended and sent to the Constitutional Court again in October. On the 18th November the Court’s second hearing began, and on the 4th December the Con Court certified the final text. President Nelson Mandela signed the Constitution into law in Sharpeville on the 10th December 1996, international Human Rights Day.

The Constitution came into effect on the 4th February 1997, nearly five-and-a-half years after the first CODESA, where plans were put in place to draw up a new Constitution. Following the signing into law of the Constitution, the week of the 17th to the 21st March was named national Constitution Week, with over seven million copies of the Constitution being distributed in all 11 languages.

The drafting of the Constitution is the largest public participation programme ever carried out in South Africa. An impressive 1 438 submissions were received from the public with a staggering 248 504 petitions submitted. The level of consensus achieved during this negotiation process is even more impressive when one considers the relative strength of the different negotiating partners. The voting strength of individual parties was as follows: African National Congress, 312 members (63.7%); National Party, 99 members (20.2%); Inkatha Freedom Party, 48 members (9.8%); Freedom Front, 14 members (2.8%); Democratic Party, 10 members (2%); Pan Africanist Congress, 5 members (1%); and African Christian Democratic Party, 2 members (0.4%).

The adoption of South Africa’s final Constitution concluded some of the most successful negotiations in recent constitutional and political history anywhere in the world.

Images courtesy of www.constitutionhill.org.zamg.co.za, www.disa.ukzn.ac.zawww.enca.com

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