Introduction
The transition from the Apartheid era to the new democratic dispensation was a powerful and fundamental process for South Africans. With many hardships, violence and struggles that majority of the population had to endure, when change came about South Africans could be hopeful for a better future in South Africa. The focus of this piece would be on the position prior to the Interim constitution, the Interim constitution and the Final constitution. Additionally, focus would be placed on the role of political parties as well as the public participation and role of the media during the transition process in South Africa.
Prior to Interim Constitution
Previously, South Africa had three constitutions which were adopted in 1910, 1961 and 1983. The problems with these constitutions are that they hardly took into account the multi-ethnic, multilingual and multicultural characteristics of a South African society. The constitutions favoured almost entirely the White, Christian, Afrikaans patriarchal minority. The rights of Black people were violated and were subjected to socio-economic deprivation. People were dispossessed of their land, marginalised and suffered severe human rights violations. They were forcefully removed from their homes and their citizenship was removed.[i]
First constitutional change
The 1980s was the time in which brutal levels of repression of opposition forces existed. Even though this was the case President P.W Botha came to the realisation that there was a need for constitutional reforms and that steps needed to be taken in order to prevent the Constitution of 1983 to be completely discredited.[ii]
Second constitutional change
The second phase of constitutional change was when there was an occurrence of a series of meetings which took place between the National Party officials and leaders of the ANC who were imprisoned. After the Minister of Justice Hendrik Coetsee (representative of President P.W. Botha) gave Nelson Mandela unpublicized visits in mid-1987 during the time that he was serving his life sentence in prison, the second phase of change first come into play. These meetings continued and increased over the following two years. In May 1988, a committee was established by the government to handle the contact between government, Nelson Mandela and also other imprisoned or exiled ANC leaders. On 5 July 1989, Botha and Mandela had their first meeting in person. This was known as the famous “tea party.” This prevented any attempts by government to discourage these contact visits. This was in response to the request from Mandela for there to be high-level discussions in order to possibly negotiate a settlement of the African National Congress’ armed struggle.[iii]
A road map for negotiations in the future was suggested from Mandela to F.W de Klerk who was the new president following Botha’s resignation and which gave the NP victory in the “general elections.” The proposal which Mandela suggested contained a power-sharing plan for the NP and their rivals which contained a spirit of compromise which needed to be administered in order to monitor the rivalry which laid ahead.[iv] The decision that de Klerk took (which had everyone surprised) in opening negotiations with the ANC over a democracy was a very important step in South Africa’s history.[v] These talks resulted in the beginning of the third constitutional phase.
Third constitutional change
This was the most transforming phase. The beginning of this phase started when de Klerk delivered his historic speech on the 2 February 1990. More than thirty antiapartheid organisations were legalised and eight long-term political prisoners were released which included Mandela and Walter Sisulu.[vi] There was also a moratorium which was based on the carrying out of the death penalty and the release of several other emergency restrictions. The decision to release Mandela was one of the most important decisions and it astonished almost all of the observers.[vii] Additionally, the emergency regulations concerning the media and political detainees were removed. The most important of this speech was when de Klerk announced that he intended to negotiate a new democratic constitution with his political opponents.[viii] In October a step toward reform was taken by the parliament when they repealed the Separate Amenities Act which was a vital foundation of Apartheid.
Fourth constitutional change
This transformation came about when the NP government and the ANC leadership realised that they were dependant on each other and needed to work together and compromise in order to have successful constitutional negotiations. Their relationship changed due to their discussions and agreements in three events. The Groote Schuur Minute which was held in May 1990, the Pretoria Minute which took place in August 1990 and the D.F. Malan Accord which occurred in February 1991. A consensus was taken where the ANC leaders delivered a pledge that the armed struggle would be suspended, the government agreed that all political prisoners would be released and there was a mutual consensus on both sides to have further political reform through negotiation. The National Peace Accord was signed on 14 September 1991 by the representatives of twenty-seven political parties, interest groups and the national and homeland governments. They agreed that a multiracial council (later called the Transitional Executive Council (TEC)) would be formed as a temporary executive authority until democratic elections could be held.[ix]
Approximately three months after the peace accord was signed, the preliminary negotiations was conducted (which was to agree on procedural rules) at the World Trade Center as the Convention for a Democratic South Africa (CODESA). By September 1992, Mandela and de Klerk reached a Record of Understanding. This was where both sides accepted and committed to a democratically elected, five-year interim Government of National Unity which would be led by a political alliance. It was also agreed that the state president would be chosen by the party who has the majority of the votes in nationwide non-racial elections. The seating worked where if a party received at least 5 percent of the votes, they would be have a place in the cabinet. The drafting and adopting of a new constitution would be dealt with by the transitional, bicameral parliament. It was accepted by the ANC that they would share power with the NP during the transition. If ANC would win the election then it would have preference on most matters, whereas the P would serve as a junior partner in running the country.[x]
There were certain debates as to what would apply and what wouldn’t. Amongst other thing, the NP refused to give the new state president broad and extensive powers during the transition and won this agreement. Under the previous system, the president would have been able to override the views of the minority parties. The ANC was able to compromise by agreeing to participate in the sharing of power arrangement for at least five years. The Government of National Unity was seen as the country’s best chance to achieve long term political and economic stability. There was however criticisms which were made and one of the main criticisms were that by having two political rivals in charge, their small party opponents would have little room to manoeuvre politically and would possibly be force into extra parliamentary protest.[xi]
The Interim Constitution
The Constitution of the Republic of South Africa, 1993 (Act 200) also known as the Interim constitution was ratified on 22 December 1993 and on 27 April 1994 it was ratified. This was not seen as a final constitution. It was drawn up so that there was a constitution governing for a period of five years while the Constitutional Assembly drafted the Final constitution.[xii]
The drafting process
In September 1993, a package of electoral laws were adopted by Parliament. With the support of almost all the participants of the Multi-Party Negotiating Process (MPNP) the government and the ANC were vigorously moving toward adopting the Interim constitution. On 17 November, after a rush of agreements on the very sensitive issues the plenary gathering introduced the Interim constitution. These draft proposals were put before a short session of the tricameral Parliament in November and December 1993. The negotiating council sat again late in 1993 to tidy up several issues which were found with the constitutional draft as well as to adopt draft statutes which would regulate the form and structures attached to the local government during the transitional period. This was a way of preserving a degree of racial privilege on the local level for at least five years. While the Parliament sat in December and early 1994 the ANC and the government still tried to persuade the Freedom Alliance to participate in the elections in terms of the Interim constitution.[xiii]
The content of the Interim constitution
There were principles which the Interim constitution comprised of and the Final constitution had to comply with these principles, committing to a multiparty democracy, individual rights without discrimination and a separation of powers in terms of the government. The purpose of the separation of powers was so that there was no one authority that had exclusive power. If that was the case then the purpose of the other authorities would be redundant and it would not be transparent.[xiv]
The Interim constitution comprises of a preamble, fifteen chapters (with 251 sections) and seven attachments. It contains the fundamental rights of the citizens of South Africa and also requires that where there are any new laws or rules of government which portrays inconsistencies or infringements on these rights, it must be invalidated by the Constitutional Court. Some of the fundamental rights were right to life, human dignity, freedom of religion and the right of free association, language and cultural rights. Included in the Interim constitution is the defining of the government’s authority, the reaffirmation of sovereignty, the supremacy of the constitution and also the powers of the executive and judicial authority. There are schedules which are attached to the Interim constitution which describes the nation’s new nine provinces, the electoral system, oaths and affirmations of office, the procedure for electing the president and the authority of provincial legislatures. A draft of the Final constitution was to be prepared within the next 2 years following the Interim constitution and it would have to be approved by two-thirds of the legislators as well as by the Constitutional Court.[xv]
The Final Constitution[xvi]
It was on 8 May 1996 when the Constitutional Assembly completed two years’ work on the draft of the Final constitution which was aimed at replacing the Interim constitution of 1993 by 1999. The draft consisted of most of the provisions in the Interim constitution but there were differences which made them inconsistent and controversial to each other. Some of the differences were that the Government of National Unity would be replaced by a majoritarian government which was referred to as “winner take all” in the national elections. Under the Final constitution the power sharing would no longer take place and the party who receives majority of the votes would then be able to appoint cabinet members and other officials without really having to consult with the minority parties in the National Assembly.
The draft constitution had an immediate impact on the structure of the government in 1996 even before it was approved or implemented. The indicators of this was when the NP announced that they would resign from the Government of National Unity but still tried to assure their supporters that they would maintain an active role in the National Assembly and in politics.
It was agreed that the 1996 draft constitution would have to be scrutinised by the Constitutional Court in order to ensure that it was consistent with the constitutional principles. The Constitutional Court did not immediately approve of the draft constitution and it was sent back for revision to the Constitutional Assembly for revision on certain aspects.
Exparte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa[xvii]
This was the case in which the draft constitution was sent to the Constitutional Court for approval. The court stated that the first draft or text drafted by the Constitutional Assembly could not be certified. The importance of the certification by the court was to determine whether the text was consistent to the constitutional principles which were set out in Schedule 4 of the Interim constitution. The court identified the provisions which were inconsistent and did not comply with these principles and also gave reasons for this decision. The Constitutional Assembly was consequently ordered to review these aspects of the text which was problematic by taking into account the reasons for the refusal of certification by the court.
The Constitutional Assembly reconvened and produced an amendment of the constitutional text on 11 October 1996. When the court reviewed the text it opened the issue to political parties, general public and the Constitutional Assembly to make written representations to the court. The court emphasised that the objectors were free to raise any issues which were not previously raised as well as to submit that the court may have missed certain errors which they thought should have been addressed. After receiving objections the court held that many changes were made from the first draft and it was clear to the court that the Assembly took into consideration the reasons that the draft was not certified and amended the text accordingly. However there were still remaining issues which the court focussed on in delivering its judgment. The court addressed the issues of the Bill of Rights, Amendments to the Constitution, local government, transitional provisions, traditional monarch, Intervention Permitted by the amended text 100, the public protector, auditor-general and the public service, commission and compliance with the conditional principle XVIII.2. The court discusses all of these aspects (of which only a few will be discussed below) and concludes with whether these powers and functions of the provinces under the amended text are less or inferior to those provided for in the Interim constitution which is a requirement contained in the constitutional principle XVIII.2.
The court discusses four objections which were related to the Bill of Rights. A contention was made that the right to choose a trade, occupation or profession was a fundamental right which was universally accepted and which subsequently could not be afforded to citizens only. This contention was rejected by the court. The court rejected that the amended text failed to sufficiently protect and recognise the rights of self-determination by stating that the rights drafted in terms of this as well as the procedural provisions for their enforcements were adequate. There were certain rights which were excluded in the amended text which was objected to but the court held that they did not constitute grounds for non-certification. Finally, the court rejected the contention that the amended text 203 provided for a declaration of martial law.
With regard to the amendments to the Constitution the court held that the provision made in the amended text were adequate. The court further rejected objection which were related to schedule 6 of the amended text dealing with transitional provisions.
A big part of the judgment made by the court was made to the determination of whether the amended text complies with the requirements of CP XVIII.2 and further to which extent it applies. The court declared that even though the powers and functions of the provinces under the amended text are not as extensively dealt with like in the Interim constitution, it was not to the extent that it was insubstantial.
The order that the court made reads as follows: 'We certify that all provisions of the amended constitutional text, the Constitution of the Republic of South Africa, 1996, passed by the Constitutional Assembly on 11 October 1996, comply with the Constitutional Principles contained in schedule 4 to the Constitution of the Republic of South Africa, 1993'.
Political Parties[xviii]
The transformation to the political system was a radical one when the bans were lifted from the political parties after the speech given by de Klerk and where these previously illegal parties were able to participate in the 1994 elections. The parties were given reign to become inclusive in the process of transition and not to have their opinions limited.
African National Congress (ANC)
The ANC was founded in 1912 as the South African Native National Congress but was renamed the ANC in 1923. In the 1930s the influence of the ANC declined but its revival came about in 1940s largely due to the dynamic group of young leaders including Nelson Mandela, Walter Sisulu, and Oliver Tambo. In 1943 the ANC Youth League was established. In the 1950s alliances were formed with other antiapartheid organisations in order to oppose the white state and on 26 June 1955 the Freedom Charter was adopted. The inclusive policies of the ANC was opposed and the Pan-Africanist Congress (PAC) was established in 1959 in order to press for Black political control.
The membership of the ANC is open to all other races as well even though it primarily represents the interests of Black people. There was an appeal that all races join and in 1991 five white members who were part of Parliament (and who represented the Democratic Party) left to join the ANC which gave them official parliamentary representation for the first time in an all-white House of Assembly.
In 1988 the ANC promulgated the Constitutional Guidelines for a Democratic South Africa which was derived from the Freedom Charter of the 1950s. The Harare Declaration was adopted in August 1989 which gave a strong emphasis to the concept of individual rights. The biggest partner that the ANC had throughout the entire process (including during the Apartheid era) was the South African Communist Party (SACP). They helped the ANC to secure support of communist and socialist governments during the exile period and helped to accumulate support for the ANC in the labour movement. One of the roles which they played where the ANC is concerned is when Joe Slovo drafted proposals for the ANC in 1993 in order to compromise the power sharing with the NP.
The ANC became South Africa’s dominant political party in 1994 but still faced a number of problems as time went on especially with the resolution of the successor of Nelson Mandela since he announced that he would not seek re-election in 1999.
South African Communist Party (SACP)
The SACP was not an independent political party in 1994 but rather a part of the ANC due to the fact that its members had important leadership positions. They won strong representation in the National Assembly in 1994 but this was only due to the fact that they were well represented by the ANC and not because they participated openly in the 1994 elections.
National Party (NP)
When P.W Botha was the leader the NP started changing direction to first reform Apartheid and then to dismantle it. When the NP was led by de Klerk it resulted in the transformation of the Apartheid system and including non-racial democracy. This also enabled the NP to turn into a modern democratic party even though it deprived itself of the dominance it had enjoyed for a long period of time. The most evolutionary changes enabled by the NP began in 1989 when there was a change of leadership from Botha to de Klerk. De Klerk provided a commitment to establish a new post-Apartheid South Africa. The party maintained power in the national elections in September 1989 and de Klerk was confirmed to be the president for an additional five year term.
The NP was the most influential in the post-Apartheid political system as it was discussed above. They aimed to produce a new party image and in doing so launched a nationwide recruitment drive for new members of all races in 1990. They placed emphasis on the racial tolerance and it was these kind of changes which increased the party’s parliamentary support. With the approach of the 1994 April elections the party attempted new ways in order to gain support from the Black majority of the country. One of the main ways in which they did was in its active involvement in dismantling Apartheid and portraying itself as the liberator of the country’s Black population.
Other Political Parties
The Democratic Party (DP) was created in April 1989 and was portrayed as a liberal, centrist party. Their aim was to abolish the Apartheid and create a non-racial democratic state which included the protection of human rights. It is ironic that some of the DP’s notions were adopted by the NP which consequently deprived the DP of some of its political base. While the DP was preparing for the 1994 elections, they gave special consideration and attention to creating jobs in a free market economy and also opposed “economic populism, socialism and the politicisation of education, housing and social services.” What the DP mostly stood for and wanted to implement was tha there be a constitution which would be based on the rights of individuals, property rights, press freedom and women’s rights. However, during the elections their performance was considered to be very poor as they received only 1.7 percent of the votes.
The Pan-Africanist Congress (PAC) was established in April 1959 by members of ANC who rebelled against them. The reason for this was due to the fact that they opposed the group’s multiracial orientation and advocated black liberation in a manner that was Black Nationalist context.
The PAC’s founders criticised the ANC by stating that they were decreasing the strength of the voice of the Black population by welcoming white members into the party. They also opposed the alliance which took place between the ANC and the SACP due to the fact that they rejected Marxist economic dogman. Additionally they also rejected the Freedom Charter which was proposed by the ANC because it aimed to incorporate minority rights in a future post-Apartheid state.
The activities of the PAC went from mass action campaigns to protest against the pass laws that required Black South Africans to carry identity documents. In 1960 the PAC was banned and was only removed in 1990. The PAC contributed very little to the negotiations during 1993 and 1994 but it did however suspend its armed struggle in early 1994 in order to participate in the April elections.
Public Participation and the Role of the Media[xix]
The Constitutional Assembly had an important aim, which was that the process of drafting and adopting the constitution had to be made transparent, open and credible. It was important that since the constitution would govern the people of South Africa, it would need their input in order to be effective and successful. This was due to the fact that which the situations and occurrences of the past there was a lot of mistrust and political conflict and therefore he people of South Africa did not only have to feel part of the process but they should also be content in feeling that the constitution represented their views. The public participation programme that needed to be implemented was a difficult process and there was a very strong possibility that it would be unsuccessful since it needed to reach many rural areas of which majority of the people were illiterate, did not understand the importance of the constitution and did not have any access to media. If people did not understand the importance of the process then it would make the whole programme have no meaning or purpose. This made it difficult for the directorate who was appointed to implement this programme to gain access to the population which consisted of more than 40 million of the population.
There were three ways in which the participation process was addressed: community liaison, media liaison and advertising. The only way in which community liaison would be effective was if there were face to face interactions between the Constitutional Assembly and the public. This led to a Media Department being established which included the use of print, radio and television as well as a national advertising campaign. On 15 January 1995 the media campaign was launched and this was just before the Constitutional Assembly began to work. The aim of this campaign was to make the public aware of the transitional process and to encourage the public to make submissions and objections to any of the aspects which they felt should have been included in the process. The main message which they wanted to carry across was that the actions of the public during this process would be everlasting and would make for better conditions for the future generations of South Africa. The advertisements which were made was with the messages such as “you’ve made your mark, now you have a say” and “it’s your right to decide your constitutional rights.” These advertisements were run on any possible form of media that the public would be able to gain access to.
The campaign also advertised the meetings which were held and the public was able to come forward to voice their views on issues which were addressed in the negotiations. Most of the meetings which were held were with rural and disadvantaged communities because these people were unable to access any means of electronic media. Also, they were not educated enough to contribute to the process and this gave a need to a programme which served as an education orientation. This resulted in the development of the Constitutional Education Programme. In the time period of February and August 1995, twenty-six public meetings were organised in all nine provinces and more than 200 members of the Constitutional Assembly became involved in them. The most overwhelming experience of these meetings were that they involved political figures who used to be in war with each other but now stood together in order to get the message across to the population. The meetings showed results which were successful and the aim to portray that the constitutions were about basic values which affected the public was emphasised. It was a humbling experience to realise that constitutional debates and issues were not only the domain of the intellectual elite but rather that they belonged to everyone.
Other means of communication which were used were newsletters, television and radio programmes as well as an internet home page. These programmed all had the title Constitutional Talk. The television programmes were launched on 24 April until 10 October 1995 on two SABC channels and in 1996 a series of twelve programmes were launched until May. The use of radio was even more effective than television in that it could reach more people in both rural and urban areas. The newsletter which was established by the Constitutional Assembly provided information to members of the public and did so in a manner which was detailed and educative. Further, there was a telephonic Constitutional Talk-line which whereby callers could obtain an update on the political discussions and could also leave messages in a request for information or to have their submissions recorded. This service was available in English, Afrikaans, Tswana, Xhosa and Zulu. The whole process of media communication with the public was an overwhelming and imperative success for the Constitutional Assembly and the public.
Conclusion
With the drafting, certification and implementation of the Final constitution, South Africans were able to see change in the country and as time progressed gained trust in the leadership of South Africa. It is clear that the constitution of South Africa is not one which is fool proof but there are instruments in place in order to ensure that there are solutions for instances which arise that was not anticipated by the drafters of the constitution. Today, we see the result of the struggle, sacrifices and hardship that was made and we see that it was not made in vain.
Endnote
[i] Sarkin, J., 1999, ‘The Drafting of South Africa’s Final Constitution from a Human-Rights Perspective,’ The American Journal of Comparative Law, 47(1), p.67. ↵
[ii] Hugh, C., 1994, ‘Towards a South African Constitution,’ The Modern Law Review, 57(4), p.494. ↵
[iii] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html and towards a SA const p 494 and 495 ↵
[iv] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[v] Giliomee, H., 1995, ‘Democratization in South Africa,’ Political Science Quarterly, 110(1), p. 85. ↵
[vi] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[vii] Hugh, C., 1994, ‘Towards a South African Constitution,’ The Modern Law Review, 57(4), p.495. ↵
[viii] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[ix] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[x] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[xi] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[xii] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[xiii] Hugh, C., 1994, ‘Towards a South African Constitution,’ The Modern Law Review, 57(4), p.504. ↵
[xiv] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[xv] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[xvi] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html ↵
[xvii] O’Malley, Certification of the Constitution: a summary of the judgment of the Constitutional Court 4 December 1996, viewed 22 April 2016, from https://www.nelsonmandela.org/omalley/index.php/site/q/03lv02167/04lv02257/05lv02258/06lv02261.htm ↵
[xviii] Federal Research Division of the Library of Congress, Chapter Four: Government and Politics, viewed 18 April 2016, from http://www.country-data.com/frd/cs/zatoc.html. ↵
[xix] South African History Online, The Soul of a Nation: Chapter 13- The public participation process, viewed 20 April, from http://www.sahistory.org.za/archive/chapter-13-public-participation-process#sthash.Azu73lbc.dpuf. ↵