Book 6: Negotiation, Transition and Freedom - Chapter 3 - The South African Constitution: Birth Certificate of a Nation by Hassen Ebrahim

From the book: Book 6: Negotiation, Transition and Freedom commissioned by The Department of Education

Much of the research for this contribution has been drawn from the author’s book, Soul of a Nation – Constitution-making in South Africa, Cape Town, Oxford University Press, 1998.

The adoption of our Constitution in 1996 was one of the major turning points in the history of our country. This chapter will seek to explain how we came to adopt this great document that is respected throughout the world as one of the most advanced of its kind. Most importantly, it will try to convey the essence of our Constitution and why it truly is the birth certificate of our young nation.

What is the historical background to our Constitution?

Although South Africa’s Constitution was drafted between May 1994 and October 1996, the ideas contained in it are not new. Many of its provisions are the realisation of years of struggle and speak to the very essence of who we are as South Africans.

Our constitutional history spans nine decades between two major milestones. In a sense, both were peace treaties; one ended a conflict and one gave birth to a new constitutional order. The first milestone was the 1902 Treaty of Vereeniging, which ended the Anglo-Boer Warand laid the basis for the adoption of the country’s first constitution in 1910. That constitution was drafted by an unrepresentative convention that expressly excluded the voice of the majority. The second milestone was the 1993 Interim Constitution, which has also been described by some as a peace treaty. The Interim Constitution essentially signalled the end of a long history of conflict and provided the basis for our new Constitution, drafted by a Constitutional Assembly representative of the majority of people in the country.

The signing of South Africa’s final Constitution was a milestone in our history. The Constitution was the birth certificate of the South African nation. It is one of the most advanced in the world, establishing a constitutional democracy in which a finely-crafted Bill of Rights enjoys pride of place. It is the product of negotiations between political parties that were at war with each other. It constitutes a political agreement between mandated leaders about what the most basic law in the land should be. In a sense, the Constitution represents a discovery of nationhood because it reflects the soul of the nation.

What is a Constitution?

At its very core, a constitution is little more than a set of rules by which a country is governed. More directly, a constitution is about power – what power is to be wielded, who is to wield it, and over whom it is to be wielded in the governance of a country. However, when defining this power, we should also define its limitations and who may need special protection.

This rather simple definition of a constitution suggests that it has two distinct audiences – internal and external to the country. For the internal audience, a constitution represents a compactbetween those who wield power and those who are subjected to such power. It is in this regard that the rights and duties of citizens (both individually and collectively), as well as the checks and balances against those who wield power, become essential components of a constitution. For external audiences, constitutions define the essential characteristics of a country’s sovereignty, including its national territory, citizenship and the interaction between it and those outside its borders.

Another important dimension of constitutions is the circumstances under which they are adopted. New constitutions generally are a product of turmoil, upheavals and even revolutions. They are an expression of radical changes in society. This becomes clear when we look at the history of most constitutional processes over the past hundred years. They have been characterised mainly by struggles against racial domination, colonialism, abuse of human rights and racial, religious and ethnic prejudices. Many of these struggles also revolved around access to land, natural resources and cheap labour. It is hardly surprising, therefore, that the most prominent features of these constitutions have been self-determination, national democracy, universal franchise, the rule of law, separation of powers, regular elections and basic human rights.

Most importantly, a constitution must be a reflection of a people’s history, fears, concerns, aspirations, vision and, indeed, the soul of that nation. While a constitution reflects the will of the majority, it must equally take into account the fears and concerns of minorities. It must provide a common framework within which people of diverse or even opposed views, beliefs and cultures can interact without having to resort to force of arms. What is perhaps more important is that our Constitution limits the government’s ability to pass legislation that in any way compromises a citizen’s basic rights.

What historical factors shaped our Constitution?

To understand the essence of our Constitution, one is obliged to journey through history and discover those common values that shaped it. The Constitution also provides the best explanation of who we are as South Africans. This short essay allows us space to deal with only some of these factors.

The first clause of our Constitution boldly declares the founding values of our new nation – the recognition of human dignity and the achievement of human rights and freedoms. It also declares a commitment to non-racialism, non-sexism, the supremacy of the Constitution as the highest law, the right to vote, and a multi-party system of government that ensures accountability, responsiveness and openness. While this may appear to be common sense and somewhat basic today, the history of our country from 1652 until 1994 suggests differently, in fact so differently that the drafters of our Constitution felt that they had to place this commitment in the very first clause.

From the advent of colonialism right through to the development of the apartheid state, the total disregard and violation of human rights was so severe that it stripped away the very dignity of people. This was justified by an ideology that believed that all people were not equal. This made it possible for Black people to be regarded as less than human. It even meant that the Boers (Afrikaner farmers) who resisted British rule could be placed in concentration camps long before the Germans adopted this practice during World War 2. The pain of this experience and the genocide that it brought about is so deeply etched in our psycheas a people that we have committed ourselves as a new nation to live by different values.

Officially, colonialism came to an end with the Anglo-Boer War, when the Boers fought the British for political control over South Africa. The 1902 Treaty of Vereeniging, which brought an end to this war, was followed by the eventual adoption of South Africa’s first constitution on 31 May 1910. This constitution formally denied the majority of the people political expression. It also set in motion a process through which the Black majority were restricted to 13% of the country’s land.

The politically-devastating effect of these developments spurred the emergence of the African National Congress (ANC)on 8 January 1912. This saw the rise of African nationalism and resistance to the new political dispensation. Perhaps more importantly, these developments also brought about the first demands for a constitution to be drafted by representatives of all South Africa’s peoples. It took nearly a hundred years for this demand to be realised.

This resistance found expression in an alternative vision – a vision of a democracy and in particular a vision of an emerging constitutional dispensation. It is hardly surprising, therefore, that in 1955 the Freedom Charterwas adopted at the Congress of the People. This document was arrived at through popular participation and reflected the vision of South Africa’s majority.

In May 1957 ANC President-General Albert Luthulimade an impassioned appeal to the government for a National Convention. Its function would be to allow the people’s representatives to discuss the conflict in the country and to find solutions. This appeal was ignored.

On 16 December 1960, a Consultative Conference was held in Soweto. Forty African leaders met with liberal and progressive Whites. The Conference rejected the establishment of a republic and made a call to the African leadership to attend an All-in Conference. On 25 March 1961, the All-in Conference met and called for the negotiation of a democratic dispensation. At this conference, Mandela’s call for a National Convention of elected representatives to determine a new non-racial democratic constitution for South Africa was adopted.

Despite the banning of all organisations representing the majority and a protracted armed struggle, the ANC in 1989 lobbied the Organisation of African Unity (OAU) to adopt the now famous Harare Declaration that set out the basis for the transition of South Africa to democracy. Central to this strategy was the demand that a representative and elected body should be mandated to draft South Africa’s constitution.

This history profoundly influenced the new Constitution in several ways. It formed the basis of the argument that no government or constitution could justly claim the authority of all its people unless it was based on the express will of all. Accordingly, representivity and not just majority rule has become a hallmark of our Constitution. This has been influenced by the recognition that South Africa is a rich tapestry of diverse cultures and peoples – all of whom need to be equally respected. A good example of this is the Constitution’s recognition of eleven national languages of equal standing. Another example is our national anthem.

Our Constitution seeks to find a delicate balance between addressing the fears of minorities and the aspirations of the majority. Hence, there is a deliberate attempt to ensure that the interests of minorities will not be wantonly disregarded, be this in language, culture or religion.

The pursuit of representivity does not end here. There is a requirement in several aspects of decision making to ensure that proper consultations be carried out with all interested parties – be they individuals or structures of civil society. Public participation in decision-making processes is continuously encouraged. This is also evident in the constitutional requirements for the passing of legislation by Parliament.

How was our Constitution negotiated?

The general election in April 1994 was the product of a negotiated package of agreements to bring an end to a conflict. This election also ushered in a new process of negotiation – the negotiation of the final constitution. The population of South Africa voted to provide the newly-elected leaders with two separate and distinct mandates – to govern the new democratic society and to draft the final constitution. This election produced 400 political leaders in the National Assembly and 90 in the Senate. In terms of Section 68(1) of the Interim Constitution, a joint sitting of these bodies formed the Constitutional Assembly.

In drafting the final constitution, the Constitutional Assembly had to work within particular constitutional and political parameters. These were the requirement of a two-thirds majority for adoption of the text, compliance of the text with 34 constitutional principles agreed to in the Interim Constitution, and the adoption of a new constitution within a period of two years.

Our Constitution is a celebration of the creativity of the South African people. Few countries have been as successful as we in negotiating a political settlement and producing a constitution. This is especially true when one considers the fact that it was a negotiation between parties that held opposing ideological views.

This negotiation went on to produce a constitutional framework within which previously warring parties could co-exist to form a vibrant democracy. From the smouldering ashes of a divided society, the basis of a new South Africa was produced, which is why this Constitution is referred to as the birth certificate of a nation. The 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 wrong the prophets of doom so that, despite the adversity, it was possible to finalise one of the most advanced constitutions in the world with the greatest possible public participation.

Fundamental to the success of the negotiation process was its inclusiveness, which clothed the Constitution with the legitimacy it needed as supreme law. 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.

To produce a “win-win” formula, it was important to recognise and respect the diversity of the interests involved. 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. Differences that were previously responsible for blood-letting became an asset, and differing political, social, cultural and religious interests were allowed to co-exist. This diversity makes the Constitution the vibrant document it is, for it bears the imprint of all parties and the interest of the constituencies they represented.

What is the importance of the Constitution for our country?

Reflecting the soul of our nation

The Constitution is the birth certificate of a new South African 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 us not to be boastful and repeat the mistakes of the past. Indeed, our Constitution does represent the growing soul of a new nation. 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.

Evidence of the fears and aspirations of various sectors in society abound in the Constitution. Some of these relate to the different forms of discrimination people experienced in the past, 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 accountability, 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 Commission and Gender Equality Commission, the Public Protector, the Auditor General, and the Commission for the Promotion and Protection of Cultural and Religious Communities. A strong Constitutional Court protects the interests of individuals and communities.

The vibrancy of different interests and ideas can best be seen in the Bill of Rights. The interests of the ANC and their constituency in the reconstruction and transformation of society are clearly reflected in the catalogue of socio-economic rights. The Democratic Party’s traditional stance on individual rights such as freedom of expression is also present. The Pan Africanist Congress’s principled positions on fundamental rights and the rights of those detained and arrested also have a special place. The interests of the National Party were secured by tempering the clauses on property, labour relations, education and culture. As mentioned above, the influence exerted by civil society, especially religious, human rights, business, labour and women’s groupings, is clear in the drafting of the various clauses.

A vision for a better future

The constitution of a country is a very important document, for it represents the values and aspirations of the nation. The South African Constitution represents the end of an era and the dawn of a better future.

Until 1994, South Africa’s Parliament was sovereign, which meant that it was entitled to pass virtually any law it wished. This changed only when the new dispensation became a constitutional democracy.

The Constitution is the supreme law of the land, the yardstick by which all other laws are judged. It sets out the rules by which government is obliged to function and how it will be accountable to the ordinary people who elect it. Any citizen who is aggrieved by any law or any other aspect of the conduct of government is entitled to seek the assistance of one of several institutions, including the Constitutional Court, that have been established specifically to safeguard their interests.

Our 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. However, 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 government, and the parameters within which laws can be made and government conducted.

No matter how dynamic any law may be, unless the government is able to implement and enforce the 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. Laws 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 critical 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. There may well arise a need for improvement and a need to incorporate new values and new rights. The Constitution makes provision for a regular review, and its continuous improvement must be encouraged.

Despite the wonder of our Constitution, it would be foolhardy to become complacent. Like any other organism, the Constitution requires constant nourishment, which can only come from the respect of every one of its citizens. It is vital that we always be vigilant, to ensure that the values contained the Constitution are upheld. In this regard, the roles of the judiciary, civil society, and the electorate are of crucial importance, for unless they carry out their responsibilities scrupulously, the very essence of democracy will be eroded. This need imposes an added obligation on both government and civil society to ensure the continuous education of the public. Ordinary citizens need to be empowered to understand what their rights are and how to access the institutions capable of providing redressto legitimate grievances.

What does constitutionalism mean in practice?

While governments may come and go, constitutions remain. The true value of a constitution can only be assessed over many years of practice. We have experienced democracy only since 1994 and our Constitution since 1996. It is far too early, therefore, to pass any judgment. However, much has happened that provides us with a window into the future. For this reason, a brief survey of current debates and matters placed before our Constitutional Court may prove useful.

A legitimate constitutional order

Despite the history of conflict in South Africa, the process of constitution making has ensured that the current constitutional order has remained above party political differences. The legitimacy of the order has been placed beyond question or doubt. Hence, despite the robustness of the current political contestation and debate, the legitimacy of the Constitution has never been questioned by any political party or entity of significance.

However, the real litmus testof legitimacy lies in those cases where our Courts are able to reinforce the basic values enshrined in the Constitution and to interpret it in a manner that is seen to reflect the interests of the poor and disadvantaged, even if it is against the interests of the powerful. This was proved, for example, in the case of Alexkor Ltd v Richtersvelt Community and Others (14 October 2003, CCT19/03). The people of this poor and disadvantaged community claimed the natural resources and land owned by a diamond-mining company, Alexkor Ltd. The government was the sole owner of the company. The Constitutional Court found in favour of the community’s complaint that they had been dispossessed of the land as a result of racially discriminatory laws and practices. This decision meant that the community had the right to title and the profit from the diamonds mined from the land.

Fair contestation

While there is little doubt that fair contestationexists, some interesting debates remain controversial. One is the complaint against proportional representation. Under this system there is no direct accountability to a particular constituency by officials elected to the national and provincial legislatures. The demand for this has been made repeatedly. On the other hand, it has been argued that constituency-based elections may well deny smaller parties from being represented in Parliament. Some of this debate was highlighted by a case before the Constitutional Court in 2002. A smaller political party complained about legislation that made it possible for an elected official to cross the floor to another political party. (Normally, under proportional representation individuals elected as members of one party cannot cross the floor to become members of another party.) The Court found that such legislation was not unconstitutional; however, it was concerned as this meant that the governing party could increase its membership to greater than a two-thirds majority. The concern was that a two-thirds majority would allow the ruling party to pass legislation without any real opposition, therefore denying the essence of a multi-party democracy. It would also mean that the voice of minorities would count for less.

Respect for the constitutional order and the rule of law

According to the Judge President of the Constitutional Court, Arthur Chaskalson, political leaders have generally accepted constitutionalism and they have accepted the decisions of the court, even where it has gone against them. This, of course, has not gone untested. The Judiciary has been prepared to publicly reprimand politicians who they believed made statements that called the integrity of the Judiciary into question.

The celebrated case of the President and Others v South African Rugby Football Union and Others (CCT 16/98, 10 September 1998) illustrates this. This judgement, concerning the basis on which the courts may review the exercise of presidential powers, touched on the circumstances in which the President could be called upon to testify in a court of law. Former President Nelson Mandelatook a deliberate decision to testify and not call on the privileges bestowed on his office regarding appearances in Court. Mandela went against the advice of his advisors; he felt it was necessary to appear in court to set an example regarding respect for the rule of law and our courts.

Another issue the Court was required to address was a challenge issued to several judges to recusethemselves on the strength of a belief that they enjoyed a particular relationship with the President. In dismissing the argument, the Court deplored the tendency for those who disagreed with legal decisions to attack the integrity of judicial officers rather than to examine the reasons for their judgements. Decisions of our Courts are not immune from criticism, but political discontent or dissatisfaction with the outcome was regarded as no justification for recklessly attacking the integrity of judicial officers. The Judiciary confirmed that they would resist all manner of pressure, regardless of its source. If they deviate from this principle, they argued, the independence of the Judiciary would be undermined.

Domination of the executive

In the case of the South African National Defence Force Union (SANDFU) v the Minister of Defence (CCT 27/98, 26 May 1998), it had to be decided whether it was constitutional to statutorily prohibit members of the armed forces from participating in public protest action and from joining trade unions. The Court found this part of the Act unconstitutional.
In 1999, President Mandela referred a Bill which was passed by Parliament to the Constitutional Court to decide on its constitutionality (Ex parte the President: in re constitutionality of the Liquor Bill, CCT 12/99, 11 November 1999). This was the first time that the President invoked his power under Section 79 to refer a Bill to the Court for such a decision.
In a case involving socio-economic rights, the Western Cape provincial authorities and the local municipal authority voluntarily undertook to provide the squatters of a particular community with toilets and rain-proofing material so that their beds would stay dry during winter. This offer was made at the start of a broader case dealing with constitutional rights to housing and shelter. By October 2000, all that had materialised was one tap, a number of meetings and fruitless correspondence. The matter was brought before the Constitutional Court on an urgent basis. The Court severely chastised the government for not keeping its promises. The Court found that organs of the state had a duty to show particular regard for people in distress, such as those involved in this case. The Judge President argued that even though problems could arise in honouring an undertaking, there was a duty to solve these problems.

This is a particularly important case as it also looks at whether and under what circumstances the Court will intervene in official policy to make socio-economic rights a reality. Recently, Judge Vivienne Niles-Duner of the Durban High Court had the opportunity to deal with the question of government officials ignoring orders of court. The Judge complained that she was tired of the problem and intended to order the officials responsible for ignoring the court order to pay the legal costs out of their own pockets rather than with state funds.

What are our challenges for the future?

Our Constitution and democracy are young. They have faced some important challenges and will continue to do so in the future. The value of the Constitution will be measured by how these challenges are met. Some of the challenges which will no doubt be considered over time are discussed here.

The balance of power between the Executive, Legislature and Judiciary is a challenge that all democracies, young and old, face on an ongoing basis. More often than not, the challenge is to ensure that the Executive does not wield its enormous authority without being balanced by the other branches, particularly the Judiciary.

This is a particularly important challenge in South Africa, where the Executive is required to transform society and implement policies that will result in a better life for all. Unrestrained power and authority may be seen as necessary for the Executive to meet the demands made on it by the populace. This is a challenge that has already resulted in several controversies relating to the government policies on growth and economic development, particularly that of privatisation. This challenge will no doubt remain well after the country has made the transition from a developing country to a developed one.

As has been noted by W.J. Breytenbach, while South Africa’s constitutional institutions work quite well, especially on a national level, the country still faces enormous capacity problems in some of its provinces and at local level. He concludes that,

A significant feature of state institutions in South Africa today is the centralisation of power through the Presidency. If this is aimed at better service delivery as may be witnessed in some of the provinces then this trend is positive, but if it erodes accountability and transforms the ruling party into a ‘one-opinion party’, then this is decidedly negative. Indications about increasing inequality fall in the same category ¹⁵(Breytenbach, 2001, Conclusion).

While South Africa may take pride in the constitutional framework that it has established and the fact that its policies are based on international best practices, our country has to deal with two very important challenges – developing the capacity to translate these wonderful ideas and policies into practice, and ensuring that the country is prosperous and poverty is eradicated. The point is: what would the value of the Constitution be if it did not mean a better life for all?
Critical to both these challenges is the quality of our future leaders – the young, our learners of today. A critical requirement is the quality of skills we produce and the values we are able to instil.

Conclusion

In the few years since the promulgationof the Constitution, a large number of important challenges have been brought before the Constitutional Court. While it is still early to pass judgement on the vibrancy of the Constitution, there is little doubt that it has become part of our daily diet of public debate and discussion. Perhaps more exciting is the fact that despite these vigorous debates, there has been little argument – if any – related to the legitimacy of the Constitution itself.

These successes, however, provide little cause for complacency. The South African public, and particularly civil society, have come to understand the essence and value of a participatory democracy and are beginning to demand just that. South African democracy is young and the process of transformation it has embarked upon is difficult. We are thus confronted with exciting challenges for both government and civil society. Government needs to ensure greater interaction between departments of government and the public. It must also decide how to prioritise available resources to realise a true and lasting participatory democracy. At the same time, civil society needs to ensure that it actively mobilises the public around matters that defend the gains made and that nurture democracy. In the final analysis, it is the ordinary citizen’s respect for democracy and the Constitution that provides the best defence we can possibly have.