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The new constitution is a celebration of the creativity of the South African people, for few, if any, other countries have been as successful in negotiating a political settlement. This is especially true when one considers the fact that it was a negotiation between parties that held diametrically opposed ideological views.
This negotiation also went on to produce a constitutional frameÂwork within which previously warring parties could co-exist to form a vibrant democracy. From the smouldering ashes of a divided society, the basis for a new nation and a new South Africa was produced, which is why this Constitution is referred to as the birth certificate of a nation. The success of the negotiations lay in both the agreed constitutional provisions as well as the process adopted. It was an experience that offers many lessons for other negotiations.
This experience revealed the determination of South Africans not to succumb in times of adversity. When political violence and civil strife most threatened the prospect of peace and democracy, parties were able to strike agreements that proved the prophets of doom wrong, so that, despite the adversity, it was possible to finalize one of the most advanced constitutions in the world with the greatest possible public participation.
To each party the negotiations were as much about constitutional change as pursuing the interests of its constituency. On the other hand, fundamental to the success of the process was its inclusiveness, which clothed the Constitution with the legitimacy it needed as supreme law. Accordingly, the process was designed to give parties the confidence that they could achieve their objectives through negotiation, and that their success was not entirely dependent on their voting strength. Everyone knew that the Constitution could not be drafted unilaterally by the elected majority. Furthermore, the new dispensation provided reassurance by making the Constitutional Court the final arbiter in certifying that the text complied with agreed constitutional principles. Were it not for these mechanisms, it would not have been possible to secure the different parries' commitment to the process of negotiation.
To produce a 'win-win* formula, it was important to recognize and respect the diversity of the interests involved. The point is that while not all parties supported each of the provisions, the rejection of certain unacceptable provisions was not sufficient to warrant the rejection of the entire Constitution. Hence, the Freedom Front chose to abstain from voting rather than oppose its adoption. Differences that were previously responsible for blood-letting became an asset, and differing political, social, cultural, and religious interests were allowed to coÂexist. This diversity made the Constitution the vibrant document it is, for it bears the imprint of all parties and the interests of the constituÂencies they represent.
The method of negotiation used contributed to its success. For instance, in the vigorous public debate on the virtues of federalism as opposed to a unitary state, negotiators began by asking themselves what the qualities were of the state they desired, and this redefined the parameters of the debate and helped to resolve the seemingly intractable question of the distribution of powers between different levels of government. The end product allows for strong provincial and local government without a weak national government. While not all parties were completely satisfied with this, they were not dissatisfied to the extent that they opted out of the whole agreement.
As a whole, the Constitution was drafted by first negotiating areas of potential agreement. What followed was an attempt to bring expression to the interests of individual parties, which gave parties the confidence to buy into the Constitution as a whole. There are several examples of this in both the interim and the final constitutions. The interim constitution established a Volkstaat Council and a principle permitting the notion of self-determination, a compromise that convinced right-wingers to vote in 1994 and pursue their interests within the framework of the Constitution. In addition, a provision establishing the Commission for the Promotion and Protection of Cultural and Religious Communities found its way into the final Constitution. The result was that the legitimacy of the final Constitution was beyond right-wing contest. Similar compromises were reached on the clauses dealing with property, language, education, and minority parties. However, the accommodation of minority interests did not come at the expense of the majority.
Furthermore, several creative mechanisms balanced the interests of the majority with those of the minority and thus facilitated agreement. Set time-frames and a deadlock-breaking mechanism ensured that the final Constitution was timeously completed. A further mechanism ensured that the majority party would not be able to appoint all judges without referring to the smaller parties. Were it not for mechanisms such as these, it would not have been possible to resolve the conflicts of the past or draft a constitution for the future.
The lessons learnt from the process of constitutional negotiation obviously cannot be applied dogmatically to any other situation. However, if considered carefully, they may, for instance, benefit those engaged in the resolution of conflict between labour and capital at an industry level. Without being too presumptuous, there may be room for employers and employees within an industry to go beyond merely negotiating the relationship or conflict between them. As with political negotiations, it may even be possible to negotiate a framework within which parties associated with an industry may be able to co-exist without ignoring their fundamental or inherent differences. It may also be possible to secure improved productivity levels and a vibrant economy, without compromising either the workers' struggle for better conditions or the employers' quest for higher profits.
The human side of negotiating
The process of negotiations is often discussed using abstract accounts of complex constitutional issues, and it is consequently easy to forget about the actors responsible for producing this miracle in South African history. It is only when one considers the state of civil conflict, the deep mistrust that existed, and the abstract constitutional ideas that had to be dealt with, that it is possible to discover that the political leaders responsible for negotiating the new constitutional dispensation were extraordinary human beings.
Far-reaching personal and political mistrust existed between poliÂtical leaders to start with. The early talks about talks between the ANC and the NP government were generally carried out by those with a background in the intelligence services, right until formal negotiations began in 1991. The theory was that people with an intelligence backÂground would know the people on the 'other side' best. However, it was not too long before the actors realized that the negotiators from 'the other side' were not evil or intractable. With the advent of the bosberaad in December 1992 negotiators got to spend time with each other informally over several days, which helped tremendously in allowing them to discover the people they were negotiating with. One of the highlights of the bosberaad at D'Nyala was a late night perforÂmance by Pik Botha in the boma (rough enclosure) around a fire, berating the NP for wanting to hold on to power for too long and the ANC for wanting too much power too soon. Then there were Jacob Zuma's endless tales from Zulu folklore, the hysterical jokes of Hernus Kriel, Joe Slovo's cracks about socialists, his ability to sing the InterÂnationale in various languages, and his early morning swim with Leon Wessels and Sam de Beer. This shared time did a great deal to remove the scales of prejudice from the participants' eyes, for they recognized that they all had common fears and aspirations.
Of course, this did not mean that they spared each other during their debates. It is hard to forget Mandela's fiery attack on De Klerk at CODESA I. During the closing moments of the negotiation of the Record of Understanding, Cyril Ramaphosa and Roelf Meyer exchanged such harsh words that the entire agreement hung in the balance. Such differences were not only between parties either, for there were several dashes between negotiators from within the same party. But these moments were always the cue for a tea break, and it was during these breaks that discussions were usually put back on track.
Over time negotiators began to learn to separate their political differences from their growing respect for each other as people. They learnt how to laugh together and at each other. They joked about the time an angry Kobie Coetsee wanted to find Mac Maharaj and Fanie van der Merwe and got their names confused by referring to them as 'Fac and Manie'. They joked about Kader Asmal's use of words such as 'lugubrious' and 'lacunae' in debate, and they joked about the conserÂvatism of Kobie Coetsee and the debating style of Zola Skweyiya.
Quite aside from their political differences, which were substantial, it was with this mutual respect that the negotiations graduated from the World Trade Centre to the Constitutional Assembly. The difference was that after the 1994 elections all negotiators espoused a common nationalism. At the end of meetings a special place was reserved for wishing our rugby and soccer teams well in their international matches, and negotiators rejoiced together at the success of our teams when they won and were saddened by defeats. Often, meetings only started after some discussion about the performance of our sporting teams, and then proceeded only with repeated interruptions for the latest scores.
During their darkest moments, when negotiations seemed to falter and deadlock loomed, negotiators never failed to find something to make light of the moment. On several occasions technical advisers drafted spoof clauses with witty puns on phrases like 'organs of state', at about three in the morning.
Despite the difficult nature of the negotiations, particularly when deadlock loomed, Cyril Ramaphosa's masterful chairing of meetings ensured that negotiators never lost their good humour. His personality, charm, and wit enabled him to deal with difficult and unhappy people from all parties. He was able to command the respect of all and able to steer the process through very difficult waters. More importantly, no matter how tired negotiators were after two years spent negotiating and no matter how difficult the issues at hand, they never failed in their respect for one another.
Special mention must also be made of the trust and mutual respect that developed between Cyril Ramaphosa and Roelf Meyer. They created a relationship of trust that buoyed the process through some of its most dire moments. It was a relationship which developed into the official 'channel' between the ANC and the NR The same could be said of the relationship between Mac Maharaj and S. S. 'Fanie' van der Merwe at the secretariat.
The negotiations succeeded not simply out of compromise, but because individuals from opposing ends of the political spectrum were able to trust one another. Were it not for their political maturity, it would not have been possible for them to guide the conflict-ridden country through its stormiest waters. To have succeeded at this task was a great feat in itself, but to have done so with the humanity that they did can only make South Africans proud of the leadership they elected to draft the final Constitution.
Reflecting the soul of the nation
The final Constitution is the birth certificate of a new nation - yet the issues it deals with are not new. It is the single most important document in the lives of South Africa's people - yet it is not perfect or free of controversy. It is a triumph over adversity - yet it cautions not to be boastful and repeat the mistakes of the past. Indeed, the new Constitution does represent the growing soul of a new nation. The Constitution was negotiated over a period of two years, but the ideas it contains are as old as South Africa itself. The Constitution was negotiated mainly by seven political parties, but while it is the product of an agreement between political parties it also represents the interests of the majority of South Africans.
The vigorous debate on the question of a unitary or federal state, for instance, was not new. Ironically, this debate took place at the first National Convention South Africa held to draft a new constitution in 1909. Then, the idea of unification won the day over federation. Coming a full circle, this debate was finally resolved in the final Constitution with a dispensation allowing for strong provincial governments without weakening national government.
Evidence of the fears and aspirations of various sectors in society abounds in the Constitution. Some of these relate to the different forms of discrimination people had experienced, the need for affirmative action, the importance of equality, the desire for self-determination, the importance of effective checks and balances, the need to ensure political control over the security forces, and the need for accountÂability and transparency and respect for cultural diversity.
Of particular significance is the recognition of the role of civil society and the protection granted to individuals and cultural and religious communities. An entire chapter of the Constitution has been dedicated to institutions supporting constitutional democracy. These institutions include the Human Rights and Gender Equality Commissions, the Public Protector, the Auditor-General, and the Commission for the Promotion and Protection of Cultural and Religious Communities. A strong Constitutional Court also protects the interests of the individual and communities.
However, the vibrancy of different interests and ideas can best be seen in the Bill of Rights. The interests of the ANC and the PAC and their constituencies in the reconstruction and transformation of society are clearly reflected in the catalogue of socio-economic rights. The DP's traditional stance on individual rights, such as freedom of expression, is also present. The PAC's principled positions on fundamental rights and the rights of those detained and arrested also have a special place. The interests of the NP were secured by tempering the clauses on property, labour relations, education, and culture. What is perhaps of importance is the influence of civil society, especially religious, human rights, business, labour, and women's groupings, on the various clauses.
What is also striking about these provisions is the emphasis on public participation in legislative processes, which was a lesson learnt from the very process of drafting the new Constitution and the success of its public participation campaign. Finally, there is a significant international influence evident in the Constitution. This was in part a response to South Africa's long years of isolation, but in the main was an attempt to ensure that the Constitution was comparable with the most advanced constitutions of the world. The Bill of Rights was influenced by the most recent developments and is therefore one of the most advanced in the world.
The German constitution was also influential, particularly regarding the principle of co-operative governance. This principle, which is based on a strong provincial dispensation, ensures that all levels of government co-operate with each other for the greater good of the country as a whole. The role and status of the civil services internationally were also thoroughly researched before formulations were finalized.
Senior negotiators from all parties visited a number of different countries in a bid to study different models. Similarly, leading interÂnational experts in a number of fields were invited to make presentations. This experience ensured that the Constitution was not only comparable with the best in the world, but could become a point of reference in constitutional debates internationally.
A vision of a better future
The constitution of a country is a sacred document, for it represents the values and aspirations of a nation. The South African Constitution represents the end of an era and the dawn of a new chapter, one that contains a vision of a better future. Until 1994, South Africa's ParliaÂment was sovereign, which meant that Parliament was entitled to pass virtually any law it wished. This changed only when the new dispenÂsation became a constitutional democracy.
The Constitution is the supreme law of the land, the yardstick by which all other laws are judged and tested. It sets out the rules by which government is obliged to run and how it is accountable to the ordinary people who elect it. Any citizen who is aggrieved by any law or any aspect of the conduct of government is entitled to seek the assistance of the Constitutional Court in calling government to order.
Sadly, soon after the first democratic elections the country experiÂenced a devastating tyranny of rampant, violent crime. Armed villains appeared to continue their trade in death and misery with such contempt that citizens felt obliged to take the law into their own hands. The electorate demanded action by the government and its security forces.
The victory of democracy over apartheid and the establishment of a new government and advanced Constitution appeared hollow, for the police appeared to be hamstrung by a Constitution that demanded rights for alleged criminals too. The rising chorus of voices in society demanding the reimposition of the death penalty - and a corresponding change to the Constitution or the judgment of the Constitutional Court - reached a deafening crescendo.
However, it is up to government to be visibly successful in combating crime in all the ways it can under the Constitution: in effective policing, in efficient and impartial judicial systems, in secure correctional facilities, and in raising the standards of living of its citizens. If it falls short in this regard, it is important to resist the easy temptation of looking to amend the Constitution for solutions, for such change would deprive the Constitution of the very respect that it requires to thrive. It is often a difficult reality that the Constitution grants the same rights to all. The Constitution cannot afford to discriminate. Unless it accepts the equality, universality, and indivisibility of rights, how can society truly differ from its state under apartheid?
The final Constitution is one of the most advanced in the world, with a bill of rights second to none. As such, it enables South Africans to create and enjoy one of the most vibrant democracies in the world; but, like any other law, the Constitution is only as good as its citizens allow it to be. The Constitution does no more than set out rights, the rules by which government is run, the structures of such a government, and the parameters within which laws can be made and government conducÂted. No matter how dynamic any law may be, unless the government is able to implement and enforce that law it will lose its value. Similarly, no matter how wonderful the Constitution may be, unless it is respected by all - government and citizens alike - it will not be of much value. Laws do not make a better society, people do. Law can only be of assistance in empowering people to achieve their aspirations.
While a law depends primarily on government to implement and enforce it, the Constitution requires everyone's undivided respect. Democracy thrives on the existence of different ideological, religious, or cultural values. No matter what these differences may be, it is crucial that the people of South Africa unite around a common respect for the Constitution. This does not in the least suggest that the Constitution is perfect, for it is not, and the assumption that it could be is naive. There may well arise a need for improvement and a need to incorporate new values and new rights. In fact, these developments will depend on the vibrancy and éclat of the democracy it helps establish in ensuring the accountability and respectability of government. The Constitution provides the necessary instruments to ensure that the elected government remains answerable to the electorate.
That electorate's involvement is a sobering yet exciting part of the history of the Constitution. For the first time in South Africa, ordinary people began to realize that they had the ability to influence laws and the government. There was a ground swell of interest among citizens in matters which were previously the exclusive preserve of those in government. In other words, the country grasped that old principle of democracy: a government of the people, by the people, for the people. This is the fundamental ingredient required to ensure that the vision of a better South Africa - which is what the Constitution represents -becomes a reality.
Despite these hard won, sturdy old principles of democracy, it would be foolhardy to become complacent. The Constitution like any organism requires constant nourishment, which can only come from the respect of every one of its citizens. It is vital that they always be vigilant, to ensure that the values contained in the Constitution are upheld. In this regard, the roles of the judiciary, civil society, and the electorate are pivotal, for unless they carry out their responsibilities scrupulously, the very essence of democracy will be quickly eroded. This need imposes an added obligation on both government and civil society, that of the continuous education of the public. Ordinary citizens need to be empowered to understand what their rights are and how to access those institutions capable of providing redress to legitimate grievances. For this reason, it is necessary to continue to build on the success of the Constitutional Assembly and the programmes that it put into place. In the final analysis, we must always remember that the Constitution was drafted for the benefit of all the people of South Africa.