Chapter 11 - Negotiating the final constitution

The adoption of the final Constitution concluded some of the most successful negotiations in recent constitutional and political history. The most striking and encouraging feature of this event was the degree of consensus achieved, especially since one of the strongest influences on the process had always been the need to achieve the greatest possible consensus.

The level of consensus achieved during this process becomes even more impressive when considered against the background of the relative strength of the different negotiating partners. The voting strength of individual parties was as follows: ANC, 312 members (63.7 per cent); NP, 99 members (20.2 per cent); IFP, 48 members (9.8 per cent); FF, 14 members (2.8 per cent); DP, 10 members (2 per cent); PAC, 5 members (1 per cent); and ACDP, 2 members (0.4 per cent). The interim constitution required that a two-thirds majority adopt the final constitutional text. While the ANC did not have sufficient votes to adopt the constitution on its numbers alone, its relative strength did weigh heavily on its negotiating partners. In the end though, achieving consensus between the parties proved to be more important.

There were a number of factors responsible for the successful negotiation and adoption of the final constitution. Some of these factors relate to the willingness of the majority party to compromise to gain wider support for given formulations. Furthermore, the political will of major role-players allowed them to complete the process timeously. The political maturity and the quality of the leadership in the Management Committee were also a great advantage. The personal chemistry and camaraderie that developed between nego­tiators laid the foundation for future co-operation as well, and the dynamism of the chairperson also made a valuable contribution. The suitability of the political structures and the degree of flexibility in the structural process greatly facilitated negotiations, and the brilliance of the technical and expert advice was indispensable. Finally, the energy and enthusiasm of those involved in administrative and logistical support ensured an environment conducive to successful negotiations.'

Collating the 'wish list'

In order to identify those areas on which submissions were necessary, the negotiators agreed on agendas for each Theme Committee, Once areas had been identified and agreed upon, advertisements were placed in all major newspapers inviting submissions, and a number of workshops and consultations with affected sectors were organized to facilitate the process of public participation. All submissions were collated and processed for consideration by experts in the Technical Committees, who prepared reports based on these submissions for consideration by Theme Committees.

The invitation to make submissions elicited a 'wish list' of issues. This sparked off an important debate: what issues should be dealt with in the constitution and which issues were matters for legislation? There was a natural inclination, especially by smaller political parties and lobby groups, to seek to secure particular interests by including them in the constitution. To a large extent, this was also the way in which the broader public responded.

The reports produced by Theme Committees could not reflect the full spectrum of the submissions, but generally contained the major trends, whether they demonstrated consensus or considerable differ­ences of opinion. Often, these reports were supported by a set of draft formulations. This resulted in a further difficulty, for giving effect to the political reports developed by Theme Committees invariably begged the question: how much detail should a formulation include? In the report on the Independent Electoral Commission, the final report from the Theme Committee clearly distinguished those issues for inclusion in the final text from those that should best be incorporated in national legislation. However, not all Theme Committee agreements on their report and draft formulations were this congenial.

At the request of the chairperson, the Panel of Constitutional Experts drafted a document on the criteria that should be applied when considering issues for inclusion in the constitution. The document was tabled at a meeting of the Constitutional Committee in May 1995:

5.1 When it is debated whether a particular institution or right should be included in the Constitution, some questions which follow from the above criteria could serve as guide­lines:

i) Does the implementation of democracy and the constitutional state, based on the values recognised in the Constitution, require its inclusion (either as an institutional necessity, or in view of the country's history and needs)?

ii) Is it necessary for effective and democratic government?

iii) Is it necessary in order to address a vital constitutional agreement reflected in a Constitutional Principle?

iv) Would it be conducive to an integrated approach, in other words is it not sufficiently dealt with or likely to be dealt with elsewhere in the Constitution?

The debates in Theme Committees were repeated in the Constitutional Committee, often without any progress. Part of the difficulty was that the political representatives debating issues in the Theme Committees were often the same people dealing with these matters in the Constitutional Committee. The fact that the Constitutional Committee consisted of forty-four members did not help, for it was often too big a structure to negotiate matters effectively. In addition, members who had not had the benefit of the debates in Theme Committees participated in matters in which they did not have suffi­cient expertise. Where there were differences of opinion, compromises had to be found, but dearly parties were not ready to make the necessary compromises.

The solution found in the establishment of sub-committees provides a vivid illustration of the flexible approach that the Constitutional Assembly adopted. The establishment of subcommittees proved to be invaluable, for it was easier to find solutions in smaller structures.

Producing a working draft

According to the work programme, the first working draft had to be published and the comments processed by the end of 1995, but this was not possible, for the Constitutional Assembly had to adjourn to allow political parties to participate in local government elections on October 1995.

The success of the public participation programme and the over­whelming number of submissions made led to increased concern, especially among structures of civil society, as to whether their views would be seriously considered. This concern generated a pressure that was to remain with the Constitutional Assembly to the end of the negotiating process, and it was in this context that the administration proposed a comprehensive process of public comment and participation subsequent to the publication of the working draft.

After some debate, the Management Committee resolved that a working draft be published by 15 November to allow for public comment. This would make it possible to produce the first draft of the final text by the end of February and to adhere to the agreed time-frame by adopting the constitution on 8 May 1996. The Management Committee further resolved to establish a team of experts, including law advisers, language experts, and the Panel of Experts, to begin the work of preparing a working draft, which was to serve as a report on how the Constitutional Assembly had addressed the submissions made. The format of the draft was to draw attention to areas that remained contentious or were outstanding.

On 19 September 1995 a consolidated working draft containing draft formulations on a vast majority of issues was produced. This draft took into account legal and linguistic consistency and coherence as well as ensuring that the text was in plain and accessible language." Accordingly, on 12 October 1995 the first edition of the Refined Working Draft was produced for discussion at the Constitutional Committee meeting of 19 October." At last the stage was set. This draft provided the first glimpse of what the final text might look like and what the areas of contention were. More importantly, the draft reflected the treatment of the views of different role-players, including the public and civil society. The importance of the draft was that it dearly set out the agenda for further negotiation.

In a sense, therefore, the meeting of the Constitutional Committee on 19 and 20 October was the first at which serious negotiations on the final text took place. Political parties were now, after a year of meeting to consider different views and submissions, sufficiently primed and ready to plunge into closing negotiations. The enthusiasm and seriousness of the negotiators were clearly visible from the vast number of issues addressed and agreements reached. One kind of issue that produced much debate arose from the use of particular words or a selection of words that politicians believed most appropriately reflec­ted their agreements. Politicians, especially those with a legal back­ground or knowledge, often rebelled against the use of plain language in drafting.

One of the greatest advances made in this working draft was in its plain language. This was the first time that constitutional issues were formulated in this way. Despite the initial hesitation amongst negotiators, they accepted the idea and got used to the style.

Because a number of matters were still outstanding, it was agreed that publication of the draft be delayed, and a further meeting of the Constitutional Committee be scheduled to seek greater agreement before publication. The drafters had to provide a further edition incorporating new agreements, which they were obliged to complete by 30 October 1995 for discussion on 9 and 10 November. It was a task that proved to be extremely demanding and difficult. However, this kind of pressure became a trend that continued until the eve of the adoption of the text. New formulations were always required within an unreasonable amount of time.

The launch of the publication, however, proved to be an over­whelming success. More than 4.5 million copies of the draft constitu­tion were distributed in tabloid form throughout the country. Meanwhile, guided by the discussions of the Constitutional Committee and after further research, 18 the drafters prepared a third edition of the working draft on 18 December. Revised drafts were produced at regular intervals to reflect the latest agreements.

Composing an agreed text

SLOW PROGRESS

The closing date for submissions was 20 February 1996. Considering the fact that the publication of the draft had taken place immediately after the local government elections and before the festive period, this exercise was a huge success. The public response to the working draft was overwhelming as 1 438 submissions and 248 504 petitions poured in.

In the meantime, the subcommittee continued after the Christmas recess to make progress on outstanding issues. By agreement, Parliament reorganized its schedule to provide negotiators with additional time to concentrate on completing their tasks. But even this was not enough, and a mild sense of panic began to set in amongst negotiators. In an attempt by parties to find agreement, a series of bilateral and multilateral meetings was held behind closed doors. While bilateral meetings were privately arranged between the parties themselves, multilateral meetings between parties were facilitated by the Constitutional Assembly's administration. That these meetings were held behind dosed doors did not augur well with members of civil society or the media. These were nevertheless important meetings as they allowed parties to make compromises gracefully without appearing in the media to have betrayed their constituencies.

They also allowed for very frank discussions without negotiators having to make statements purely for the benefit of the media.

The major issues requiring resolution related to the bill of rights, the council of provinces, national and provincial competencies, courts and the administration of justice, and local government. The Management Committee meeting on 15 February 1996 identified sixty-eight indi­vidual issues outstanding. A later survey on 14 March reflected five issues on which there was deadlock: the death penalty, lockout clauses, education, the appointment of judges, and the Attorney-General; fifty-four further issues of contention in respect of which political decisions were necessary, and twenty-five matters that required technical attention.

The fourth edition of the working draft was completed by 20 March 1996. This edition also contained a detailed study and survey of all the submissions made in response to the publication of earlier drafts. The survey included endnotes intended to facilitate consideration of the public submissions. Technical experts and the Independent Panel of Experts processed these submissions and produced reports for consideration by negotiators.

During March 1996 it became clear that it would be extremely difficult to adopt the constitution timeously. One of the options explored by the Management Committee was to consider ways in which they could avail themselves of the deadlock-breaking mechanism offered in section 73 (3) of the interim constitution. In terms of this section, should it not be possible to adopt the text by the requisite majority, a text passed by a majority of members of the Constitutional Assembly could be referred to the Independent Panel of Experts, which had a period of thirty days within which to develop formulations that would find favour with parties, and have the text adopted with the necessary majorities.

THE ARNISTON MULTILATERAL

There were two options open to the negotiators: they could either pass a text by simple majority by 8 April 1996, or amend interim constitution to make provision for a similar deadlock-breaking mechanism to come into effect after 8 May 1996. After much discussion, it was agreed to opt for the latter approach. However, parties recognized that they would still have to expedite their negotiations. And in any event, all parties were keen to have a final constitution adopted within the shortest possible time, as there were many other issues of government and governance that required their attention.

The negotiators accepted a proposal mooted by the administration to hold a multilateral in an isolated area over several days. This would allow parties, with the benefit of experts being present, to hold intensive negotiations without the disruptions occasioned by remain­ing in close proximity to their work environments. The multilateral was held in Arniston between 1 and 3 April 1996 at Die Herberg, a venue with both the facilities and the isolation required for effective talks

This meeting proved extremely successful, and most of the outstanding issues were resolved. 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 NP's Roelf Meyer, who said, 'The outstanding items have been reduced to only a few'. The only issues that remained in contention were the death penalty, education, and lockout procedures. Formulations on the preamble and local government were still in the process of completion and were also outstanding. For the first time since May 1994, nego­tiators began to see the light at the end of the tunnel. However, this was not the end of the process.

As it turned out, these issues of deadlock proved to be serious enough to throw into question the adoption of the final constitution by general consensus. What was most extraordinary was that none of the major political debates that had raged between parties for several years, namely, the question of the government of national unity, the senate, and national and provincial competencies, were among these issues. Yet the NP and DP felt strongly enough about them to consider voting against the entire constitution. Parties reported the progress recorded at Arniston to the Constitutional Committee on 4 April. The Easter recess period that followed provided the technical refinement team with an opportunity to produce the fifth edition of the working draft for 15 April.

IDENTIFYING THE ISSUES OF CONTENTION

Together with the fifth edition of the constitution's working draft, a draft of the transitional arrangements was produced for the first time. While in reality little progress seemed to have been made, the second week of April was probably one of the most important periods for the negotiations, underlined by the fact that the formal process of adoption was to begin on 22 April. During this week all parties had to take stock of the fruits of their negotiation and to consider whether they were able to support the end product or not.

This week also saw the process of negotiation intensify, and the period following this week saw a great deal of pressure mount on Parliament. Despite a full legislative programme, it was agreed that the work of the Constitutional Assembly would take priority. Between Tuesday 16 April and Friday 19 April the Constitutional Committee met intermittently amid a hectic series of bilateral, multilateral, and subcommittee meetings. Party caucuses and meetings of the policy-making structures were regularly convened to renew or obtain fresh mandates. Generally, meetings took place at all hours, even stretching late into the night. During this week the so-called 'channel bilateral' was resumed as well.

There was also a great deal of lobbying by interest groups, parti­cularly by business and labour. Over 15 and 16 April, representatives of the South African Chamber of Business, Business South Africa, Die Afrikaanse Handelsinstituut, the Chamber of Mines, the South Africa Foundation, the Free Market Foundation, the South African Property Owners' Association, and the South African Agricultural Union held extensive discussions with different parties on the proposed property clause. The business community expressed concern, arguing against replacing the property clause in the interim constitution with what it believed to be a weaker protection of property rights. The NP and the DP supported the business community, but the ANC insisted on a clause that allowed for land reform and payment of compensation on the basis of clearly set out criteria. The ANC was prepared to go to a deadlock on this matter.

On the side of labour, COSATU held similar discussions concerning the lockout clause. On 16 April, thousands of chemical workers country-wide marched in support of their demand for a rejection of the lockout clause and presented a memorandum to this effect to the chairperson of the Constitutional Assembly, Cyril Ramaphosa. Thousands of workers belonging to the National Education Health and Allied Workers Union also marched the next day with a similar demand. Consultations were held with the Congress of Traditional Leaders on 18 April as well, regarding the concerns of traditional leaders about their authority and customary law. The traditional leaders insisted on representation at all levels of government and that customary law not be subject to the rights laid out in the bill of rights. They demanded furthermore that a ministry responsible for tradi­tional affairs be established, and that any legislation rejected by a council of traditional leaders should only be passed by a 60 per cent majority of Parliament. They also demanded that traditional autho­rities should be the primary structures of local government.

In a marathon meeting of the Constitutional Committee that started at 8 p.m. on 18 April and ended at 5:47 p.m. the next day, the basic text of the constitution bill was agreed upon. This meeting heralded some of the most dramatic breakthroughs in all the negotiations. One of those agreements came about in the early hours of the morning of 19 April, and was reached primarily between the ANC, the Freedom Front, and the NP. They agreed that the new constitution feature a commission to promote and protect the rights of cultural, religious, and language groups. This was vitally important to bringing the right-wing constitu­ency on board, and the move was supported unanimously by all parties. Constand Viljoen was so excited about the agreement that he was visibly emotional when it was announced. The commission, it was agreed, would be listed among the other institutions supporting constitutional democracy, with the aim of promoting respect for the cultural, religious, and language rights of communities, and the promotion, development, and attainment of humanity, peace, friendship, and tolerance among these communities on the basis of equality and free association. In addition, a dause would be included reflecting the principle of collective rights for cultural, religious, and linguistic communities to give effect to Constitutional Principle XXXIV

Another major agreement emerged during the early hours of that morning on the preamble. The preamble to the constitution had been an issue that parties avoided until the very last, simply because drafting it reflected the often conflicting emotions of those involved. Surpris­ingly enough, the matter was settled with little of the drama that had preceded other difficult agreements. The text was simply discussed in a bilateral between Blade Nzimande for the ANC and Boy Geldenhuys for the NP, and was presented to the Constitutional Committee.

However, the agreements produced by this meeting did not resolve all outstanding issues, for the major areas of difference between the parties after the Arniston accord still remained. Among the issues outstanding were the lockout clause, the property clause, the death penalty, the appointment of judges, the Attorney-General, language, local government, the question of proportional representation, and the bar against members of parliament crossing the floor. Nevertheless, a great deal of progress had been made. The text was now polished and politically refined with formulations on all agreed matters, and it was therefore in a form acceptable for tabling as a bill.

There was a perception that parties would not vote against the constitution, since they considered the text and the outstanding issues as a 'package deal'. Roelf Meyer of the NP had stated this as his position immediately after the Arniston multilateral. The media reacted to the developments in different ways. Cyril Madlala of the Sunday Times saw it as 'the controversial fruit of a long night's bargaining'. John McLennan of the Sunday Tribune saw it as 'a matter of fine tuning', explaining that 'all parties might not like all of it, but that's to be expected with something which came about through give and take'. The editorial of Rapport entitled 'Deurbraak' ('Break-through') reflected qualified excitement.

The draft constitution was published in bill form on Monday 22 April, incorporating all the agreements achieved as at Friday 19 April. The drafters were provided with no more than thirty-six hours to draft the text, proofread, and prepare the document for printing. This week also saw negotiators more upbeat, for the progress made during the last week of negotiations was reason enough for many of the nego­tiators to be confident that the constitution would be complete by the due date. However, the differences between parties sharpened. COSATU planned to call a massive national strike for 30 April in support of its demand to exclude any provision for a lockout. The ANC supported the call, but as with most national strikes, the business community and all opposition parties slammed the move.

DEADLOCKS

The draft constitution was tabled in the Constitutional Assembly on Tuesday 23 April 1996, The historic process of drawing up a consti­tution entered its final lap with a plenary debate lasting two days. In tabling the draft, Ramaphosa paid tribute to those who had died since the beginning of colonialism in South Africa. The country, he said, had come a long way since 1909, when the first Union constitution was passed in the House of Commons in the United Kingdom. He pointed out that the new, final constitution would serve as a healing balm and would ensure that what had happened in the past did not occur again. In effect, it would be the birth certificate of the South African nation.

For his part, Deputy-President Thabo Mbeki argued that the new constitution would mean that 'the immense sacrifices of so many people for freedom were not in vain', pointing out that the draft was not an ANC constitution but a 'South African Constitution'. While no single party was expected to be happy with all the provisions of the constitution, no democrat should feel it necessary to vote against the bill, Mbeki urged. All other parties in their opening addresses welcomed the tabling of the draft and indicated in general the amendments they intended to file.

In this five-hour debate, while the ANC concentrated on the bill of rights, the NP and DP indicated their unhappiness with key clauses relating to the economy. The NP leader, F. W. de Klerk, warned of the 'negative consequences' if trade union and property rights were tampered with. The NP and the Freedom Front focused on the question of minorities. The DP's chief negotiator Colin Eglin warned:

'If properly managed, [South Africa's] cultural diversity could be the glue that welds our communities together. But, if badly managed, cultural diversity could be the gunpowder that blows our nation and our democracy apart'. During this debate the PAC, the DP, and the ACDP indicated that should the draft not be amended to take their separate concerns into account, they would consider voting against it.

In terms of an agreement on the procedure to be followed, the proposals for amendments had to be tabled by parties on 23 April. It became clear from bilateral discussions between the parties that some of their differences might be intractable, and the possibility of adopting the constitution with the necessary support was for the first time placed seriously in doubt. There were various exchanges between the ANC and the NP in a bid to bridge their differences, and to this end, key negotiators from the ANC and the NP including Mandela and De Klerk met and agreed that a further bilateral involving both leaders should be held.

The pressure generated by the impasse intensified with the looming threat of the COSATU strike. The first stage of the adoption procedure lasted two days in a plenary session of the full Constitutional Assembly. The second stage was the committee process, which, it was agreed, would be dealt with in the Constitutional Committee. The object of the exercise during this stage was to consider proposals for amendment of the bill made by the various parties and to seek agreement.

The first meeting of this Constitutional Committee took place on 25 April 1996. Placed before the meeting were 298 proposed amendments to the bill tabled by the various parties. The ANC and the NP arrived at agreements reflected in twenty-eight amendments that were jointly tabled. The ANC tabled seventy-six further amendments, the NP ninety, the DP sixty-nine, the PAC seven, the ACDP twenty-three, and the Freedom Front five. In the main, the amendments were of a technical nature while others were no more than a restatement of well-known party positions that had been addressed in the previous two years. At the opening of this meeting it was agreed that debate should take place in various subcommittees: the bill of rights and state institutions supporting constitutional democracy; founding provisions, co-operative government, parliament, the president and the executive, local government, competencies, provinces, and traditional leaders; courts and the administration of justice; security services; finance; and general provisions and transitional arrangements. Unfortunately, even the subcommittees did not make much progress, and the parties remained deadlocked.

Roelf Meyer, speaking at a media briefing after the NP's weekly caucus, identified one aspect of the collective rights issues on which parties were deadlocked: whether the constitution should allow for state-aided, monolingual schools. He denned this as being 'very sensitive' to the interests of the NP: 'From our perspective, and that of our constituency, there is a strong feeling that schools should be entitled to instruction in only one medium if the situation allows that to be the case. Where a school has students that all speak a specific language, a school should not be forced to cater for other languages of a dual or parallel nature'. However, despite the deadlock, senior negotiators remained confident that they could bridge the divide.

An important series of deadlock-breaking meetings took place on Sunday 28 April, when Mandela met with De Klerk at Mandela's Mhlamba Npofu official residence in Pretoria. Within ten hours three further delegations arrived for discussions.

Overshadowing these talks was the feared national strike on 30 April and the fact that the rand was at an all-time low. Mandela's day started with De Klerk and NP negotiators at 9 a.m., and a while later Sam Shilowa and other COSATU leaders arrived to discuss their opposition to the lockout clause. The last delegation consisted of some of the country's leading business figures, whose aim it was to deal with both the lockout issue and the property clause. These meetings produced significant agreements in principle on some issues, and settled broad formulations on the lockout clause and clauses relating to education and official languages. The only point on which parties still remained deadlocked was the property clause. In reporting on the tentative agreements, the chairperson of the Constitutional Assembly stated that he was now '1000% sure of adopting the constitution on May 8'. In spite of these advances, COSATU remained adamant that the strike would go ahead.

The intensification of the process of negotiation was beginning its toll. After 15 April negotiators found themselves involved in a hectic round of bilaterals, subcommittees, extensive consultation continuous reporting to policy-making bodies of their parties. The announcements made by Ramaphosa and Meyer that tentative agreements had been reached over the previous weekend did not help matters, since despite the announcement, no report on the agreements was provided, and the agreements were just too broad and tentative.

The negotiators' difficulties manifested themselves in two Negotiators were already showing signs of physical strain and stress at the long hours of concentrated debate. In this regard, the smaller parties were subjected to a further impediment, as they did not have sufficient members to field in the various subcommittees or to engage other parties in lobbying support. Therefore, they often found themselves led by agreements between the ANC and the NP. Since Freedom Front was becoming increasingly irritated, Constand urged the two parties to report on the outcome of their meetings without delay, a request which Colin Eglin of the DP supported. However, while on the one hand it was necessary to arrive at agree­ments multilaterally, the deadlocks were essentially between bigger parties. Unless it was possible to bridge the divide between these two parties, it would not be possible to make compromises that would satisfy all the parties.

The Constitutional Committee considered every proposal for amendments to the bill, without formal tabling or motivating as would be required with other law-making. This is an example of ways the Constitutional Assembly broke with formal legislative procedures and traditions. The Constitutional Committee continued to be the main negotiating forum, so that negotiators from smaller parties would have a better opportunity to argue the merits of their positions than they would have had in the plenary.

Nonetheless, on 29 April, to expedite matters the Constitutional Committee broke up into subcommittees. Its meeting then recon­vened at 8 p.m. to take reports and consider progress made, but by midnight there was still no resolution to the deadlock, and the Constitutional Committee had to hold yet another unscheduled meeting the next day. This next day proved to be more eventful. The committee dealt with several important issues including provincial powers, the preamble, language, and the property clause. At a media briefing that morning Pravin Gordhan, a senior negotiator from the ANC, made a dramatic announcement. The ANC proposed a new package of provincial powers that included a host of exclusive competencies. For several months the ANC had debated within its structures the question of greater powers for provinces, and the proposal was made in the context of the development of the principle of co-operative government. These ideas finally matured when chapter 3 of the working draft on co-operative government was agreed upon multilaterally.

Only in the last week of April 1996, and a few days short of adoption, did the ANC's National Working Committee finally approve the package. Ironically, by this time the ANC had already been able to assert itself and obtain agreement with the NP on a package of lesser powers for the provinces. It was therefore under no particular poli­tical pressure to accede to wider provincial powers. Despite this, the ANC suspected that since wider powers lacked adherence to the constitutional principles, the Constitutional Court might not certify the constitution. The ghost of the constitutional principles that were the subject of a compromise negotiated by the ANC two years previously had come back to haunt the organization's negotiators. With the new package, provinces were further empowered by being assigned both exclusive and concurrent legislative powers. The package also created new certainty and effective powers for local government. It was also during these debates that an important constitutional shift took place, by which national, provincial, and local government came to be viewed as equally important 'spheres' rather than 'tiers' of government. Accordingly, while each of the three spheres of government had been endowed with tremendous powers to effectively, no sphere was free from the overriding principle operative government.

It was hoped that this package would entice the IFP, which boycotted the process since April 1995, to return and be part of the adoption. According to the overly confident Gordhan, 'Once the IFP looks at this, they will regret not having been part of this process. There is now no reason for the IFP to stay out. They must be there on May 8. In terms of this package, international mediation pales into insignificance'. In keeping with the IFP track record in the negotiation, in a general condemnation of the entire constitutional text they also dismissed this package as unacceptable, arguing that the provinces would end up with even less power than they had in the interim constitution.

On 30 April the formulation of the preamble was finalized. The only outstanding debate in this regard was the recognition of God in the preamble. The compromise was to include the words 'may God protect our people' at the end. The Freedom Front and NP successfully motivated a further amendment: the words 'respect those who have worked to build and develop our country' were inserted after the sentence ending 'honour those who suffered for justice and freedom in our land'. Needless to say, these amendments were not sufficient for the ACDP, who insisted on the words 'in humble submission to God'. In this regard, a submission that weighed heavily on the minds of some negotiators came from Prof. M. H. Pro the Department of Religious Studies at the University of Natal, who argued that inclusion of the word 'God' discriminated against non theists, and that such an inclusion was contrary to the principle of equality in the bill of rights.

There was also agreement on the language and property clause. Negotiators agreed that the eleven official languages must enjoy parity of esteem and be treated equitably. However, it also allowed national, provincial, and local governments to choose a minimum of two languages for practical communication. On the property clause, agreement in principle required that the formulation still be drafted.

By the end of the day, parties were still not able to complete the outstanding matters, which meant that the meeting would have to reconvene on 1 May 1996. It was agreed that the bilateral would continue that morning and the Constitutional Committee would reconvene at 2 p.m.: the constitution-making process was now effectively into overtime. The delay in finalizing the text was beginning to cause significant problems for the administration and drafters. The administration, who had hoped that the adopted text would be presented to the Constitutional Assembly in all eleven official languages for adoption, would also be disappointed on this score. Language experts were recruited from different parts of the country to carry out the translations, but their effort was completely frustrated by continuous amendments. In any event, the adopted text still had to be certified, and it would not have been cost-effective to print different drafts of a text that still had to be certified in all eleven languages.

The tension reached fever pitch. While the spirits of negotiators in the previous week had been buoyed by the agreements reached, they were now less confident of adopting the constitution in time. There was simply not enough time to complete the drafting work or fulfill the logistical implications for the adoption programme, and moreover, there was still no agreement in sight on deadlocked issues, as parties still dung stubbornly to their positions. The Constitutional Committee meeting on 1 May continued until 5:17 a.m. the next day without much success. The deadlock on the lockout, property, and education clauses remained.

The demand by the NP for the entrenchment of single-medium (monolingual) education was unpalatable to the ANC. The frustration of negotiators was now dearly visible, and parties resorted to attacking each other's positions in the media to justify their own. The ANC complained that it could make no further concessions, and together with the PAC accused the NP of racist attempts to entrench white privilege at the expense of redressing the wrongs of apartheid. Roelf Meyer, on the side of the NP, accused the ANC of being dictated to by forces outside the constitution-writing process. In the thick of these debates, the realization had dawned on parties that they would have to find solutions and compromises in the next few hours. Unless they could do so, the Constitutional Committee was obliged to take decision on whether the constitution could be adopted on 8 May.

On the morning of 2 May the chairperson, Cyril Ramaphosa, for the first time in the process of constitution-making, dropped his guard and expressed concern: 'We are now in the danger zone. If we take a wrong turn in the next twenty-four hours, we could do something we could regret for many months, possibly a number of years'. according to him, the entire transformation process was now in jeopardy. He feared the Constitutional Assembly would have to resort to deadlock-breaking mechanisms, including a referendum. 'If we ever go down that route, there are a number of implications for our country, economy, race relations, reconciliation. All sorts of things will start to become undone, the centre may not hold.' He appealed to parties not to stick to their old positions and become arrogant: 'This is the time to think about South Africa, this country, and about our people. The route we may enter within twenty-four hours, if we do not reach agreement, may well be a route that could spell disaster. I don't want to believe we sat here for two years wasting our time, to go for a referendum. The process of multi-party constitution-writing was in jeopardy.

It was in the midst of this looming crisis that one of the lighter moments in the process took place at 3 a.m. that morning. When the Constitutional Committee had reconvened to take reports on developments arising from bilateral discussions and subcommittee meetings, and members were taking their seats, the chairperson began reading out a document: 'We must start with Chapter One, Founding Provisions. This constitution is the constitution of SA and constitutes constitutionalism. The constitution is applicable to the exit applies to all those to whom it is applicable. It furthermore binds all who are bound by it. The rights in the constitution are limited only to the extent that they are limitable, subject to reasonable limitations imposed by national legislation'. He continued in this vein but was unable to keep a straight face when reading: 'In a spirit of decency and propriety, all organs, including organs of state, must remain in their own functional areas, and not encroach on the functional areas and spheres of influence pertaining to other organs'. The spoof was greeted by hoots of laughter from negotiators when they realized what was going on. It was theatre such as this that so perfectly illustrated that the negotiators never lost their humanity or sense of humour, even in the most difficult and daunting circumstances.

BREAKING THE DEADLOCK

After a short break, the participants agreed to reconvene at 11 a.m. to deal with the outstanding issues. Despite the gloom and the possibility of failure to adopt the constitution on 8 May with the required majority, negotiators never lost their confidence and maintained their faith in the process. Hence, they instructed the technical refinement team to continue amending the draft text to reflect the latest political agree­ments on refinement of the formulations. Furthermore, preparations went ahead to finalize the text for publication and for the adoption programme. In this regard, the negotiators also accepted a request by the executive director that the refined text incorporating all agree­ments be presented to representatives of all political parties on Saturday, which would ensure that the text presented on adoption day accurately reflected all political agreements.

Not surprisingly, the Constitutional Committee only managed to reconvene at 9:35 p.m. (ten hours later than scheduled) on 3 May, allowing bilateral discussions and subcommittees time to complete their tasks. This meeting dealt with various reports on outstanding issues. The first report on the education clause in the bill of rights was tabled by Blade Nzimande, the ANC's chief negotiator on education and the preamble. Nzimande reported that the ANC had tried to meet all the parties concerned but had been unable to come to a common understanding. Agreement had thus eluded the negotiators. In view of this, he proposed a clause which he argued be included in the amended bill that was placed before the Constitutional Assembly for adoption.

He explained that the ANC felt that the clause showed the extent to which it wished to build a united country and yet recognized linguistic diversity in the context of education.

The NP believed that the constitution should allow for the alter­native of single-medium institutions as a right. However, the NP wished to give further consideration to the proposed wording of the section. Dene Smuts, for the DP, opposed the formulation as it meant that independent schools would have to function at their own expense. The Freedom Front also opposed it. Richard Sizani of the PAC felt that the ANC had gone a long way in meeting the concerns of those parties who wanted education in their own language, and therefore supported the amendment. The proposal was held in temporary abeyance, until further work could be done on it. The effect of this debate was to mark a turning point in the negotiation process, for it was the first time the ANC asserted its role as the majority party. The ANC was prepared to risk a deadlock even if this meant that a referendum and ultimately an election would have to be held.

Naledi Pandor, a senior ANC negotiator on the bill of rights, reported on the clause allowing for 'Cultural rights and Self-determination'. The only difference between the parties here was whether the right had to be framed in the positive or the negative. Again, the view of the ANC, that it be negative, prevailed, supported only by the PAC.

There was further positive development regarding the property clause when Baleka Mbete-Kgositsile of the ANC tabled an amended formulation for inclusion in the bill. She argued that it was the preference of the ANC not to have property protected by a provision in the constitution at all. The ANC's constituency included those who did not have property at all, and its goal was to ensure that poverty and landlessness would be addressed in the new dispensation: the ANC agreed that there should be no absolute right to property. Sheila Camerer of the NP confirmed that there had previously been agree­ment between the parties on the principles that should govern the clause: that while land reform should be addressed, security of tenure should also be guaranteed to an extent that was acceptable to those who did hold property. This should also open the way to those without property to acquire a similar security of tenure in the future. The negotiators agreed on the proposal. Camerer further added that the ANC had gone out of its way to meet the concerns of the constituencies the NP represented, and the NP appreciated the patience, spirit, and positive approach of its fellow negotiators. Even though the DP did not support the proposal tabled by the ANC, the meeting agreed that the clause as proposed by the ANC be included in the bill as it stood.

On the lockout clause, Dullah Omar of the ANC tabled a proposal to remove it from the bill of rights and include it under the interpretations clause as a new subsection that ensured that the right given to employers in the provisions of the Labour Relations Act of 1995 would not be rendered unconstitutional. Omar realized that the proposal would not entirely satisfy business or the union movement, but that the ANC had tried to come up with a proposal that would find acceptance. It was important to ensure that stability in the country was always maintained and that industrial peace was not threatened. The ANC wanted to ensure that the relationship between employers and employees was properly regulated by law, and that it was through the process of collective bargaining that problems and disputes be resolved. Only the PAC supported the proposal, while the NP and the Freedom Front reserved their positions. The proposal was accordingly settled and included in the amended bill.

Sam de Beer of the NP reported on the developments finalizing the transitional arrangements that were agreed to by all parties. The only outstanding point related to a proposal by the NP to provide a special dispensation affecting the powers and functions of governing bodies in existing educational institutions. This was a compromise made by the ANC in finalizing the interim constitution that the NP and the Freedom Front argued be retained in the transitional arrangements of the final constitution. However, the proposal failed.

The appointment mechanisms for state institutions supporting constitutional democracy had long been a sticking point. In view of the ANC's majority in Parliament, smaller parties regarded the normal requirement of a simple majority in making these appointments as insufficient, for it would mean that the ANC could make its decision without reference to the views of other parties. On the other hand, it was the view of the ANC that the majority required should not be such that smaller parties effectively held a veto, which had been one of the causes of the deadlock that arose in June 1992 when CODESA II collapsed. Here again, there was no agreement and the ANC prefer­ence prevailed. The formulation on the appointment of judicial officers was settled in the same way. At this point the Constitutional Committee meeting adjourned at 12:30 a.m. on Saturday 4 May. The technical refinement team drafted the amended bill for consideration by representatives of political parties later that morning, and the process was successfully completed by late that Saturday evening. The agreements of the parties on the formulations made it possible to finalize the draft, and have it proofread and ready for printing on the next day.

The prospect of a stalemate was daunting. The Sunday newspapers unanimously voiced concern. 'Let the miracle continue' urged the Sunday Tribune on 5 May. The editorial continued:

Although the final deadlines are over, all is not yet lost. Past experience has shown that deadliness are merely guidelines and a breakthrough could happen at any time before Wednesday's crucial vote. All the parties should do their utmost to ensure the constitution by which the people of this country will have to live gets as wide an acceptance as possible.... The pity of it all is not so much those areas of the proposed constitution that are sticking points, but that after two years there are still issues so contentious that they could bring the whole constitutional process to a halt. The country has already enjoyed many miracles of compromise between people who, not long ago, were sworn enemies. That spirit of solidarity with the entire country, rather than with sectional interests, needs to continue for some time to come if this country is to soar into the future on the wings of a people unified in their differences by their love of the country and the trust in their fellows.

The Sunday Times of the same date was not confident, and seemed to think it likely that the text would not be adopted timeously. City Press, in its editorial, spoke of the constitution as 'the final seal on our freedom'. It stated:

This week support, prayers and sheer old-fashioned staying power were the bouquets we threw at the feet of men and women writing our country's new constitution. The work has been hard. Almost back-breaking. ... But they have one consolation: the harder their work, the more glorious will be their triumph. This will be the victory for the new South Africa: the rainbow nation millions of our people desperately want to see become a reality in our time. Our people of all colours have fought long and hard for this rainbow nation. Hence we are hopeful that our constitution writers will make the deadline.... We believe our country cannot afford a referendum should the Constitutional Assembly not deliver a new constitution.

Rapport, however, adopted a different attitude. Like the editorial of the Citizen the next day, it expressed dear support for the positions espoused by F. W. de Klerk and the NP and urged them to stand their ground. However, the editorial in Business Day on 6 May ignored the threat of a referendum and attacked the image of the constitutional text as a 'people's document'.

In the meantime, the ANC and the NP continued to meet on the mornings of Sunday and Monday, led by the Deputy-Presidents Thabo Mbeki and F. W de Klerk. To assist NP negotiators in their quest for a mandate to find a solution, the NP's Federal Council executive met on Monday morning to evaluate the crisis. After this meeting, F. W de Klerk said that his party would keep talking to the ANC on the unresolved issues. The NP was considering alternate wording for the education clause, and the NP executive and its caucus would meet again to evaluate the progress made. Later that day, De Klerk also confirmed that 'a few other matters have cropped up in the process of finishing off the constitution which are also receiving attention'. At a special meeting of the ANC caucus that also met early in the morning, the negotiating positions adopted by its negotiators were endorsed. One of the issues considered was whether the ANC would opt for a different formulation should the text not be adopted. As for the DP and the Freedom Front, neither had decided yet how they would vote.

PREPARING FOR ADOPTION

When the Management Committee met at 8:15 a.m. on Monday morning it dealt with matters of process leading to adoption. Even at this meeting, senior negotiators ignored the possibility of the failure to adopt. The issue at hand was to find ways in which the rules accommodated further amendment of the text when, not if, agreement took place. The state of play in terms of the rules required that the text not supported by all parties be put to the vote, but the rules did not make provision to process amendments at such a late hour. Since the final text was not finalized, in terms of the rules, it would be impossible to adopt an agreed text by consensus. Yet again, the Constitutional Assembly refused to be bound by the dogma of convention, and the matter was resolved by a resolution put to the Constitutional Assembly proposing that matters be referred to the Constitutional Committee to effect the required amendments.

Later on Monday 6 May, the Constitutional Assembly sat in plenary to debate the amended bill. This irreversibly set in motion a process that would oblige parties to either adopt the text or allow the deadlock-breaking mechanisms to come into effect. At the beginning of the proceedings, a resolution was passed allowing a further amendment of the bill. The ANC's Valli Moosa was the first speaker in the second reading. He defined the final constitution as a tool to build the and a statement to the world that never again would the country have apartheid as a policy. He was at pains to point out that the final constitution had many commendable features including the founding provisions that confirmed that South Africa was a united democratic state founded on human dignity. Amendment of these provisions was only possible by a 75 per cent majority. Another feature was that local government, which had always been treated as a 'stepchild' of national and provincial government, was now a fully-fledged sphere of government.

Pieter Mulder of the Freedom Front confirmed that the negotiations were made difficult by the need to make compromises to ensure the success of the talks. While the Freedom Front had not succeeded in achieving everything it wanted, the test was whether, through its participation, the party had succeeded in bringing Afrikaners closer to their 'ideals'. He was convinced that the great risks the Freedom Front had taken did achieve this. Colin Eglin, chief negotiator for the DP, said that his party believed the constitution went a long way to creating governance that was representative, democratic, and accountable. However, the DP favoured a smaller National Assembly and cabinet and hoped that the constituency feature would be brought back for the next general election.

While the Constitutional Assembly continued to meet in plenary, bilateral meetings primarily between the ANC and the NP continued until the early hours of Tuesday morning without any success. The meetings of Monday 6 May, therefore, did not produce anything material.

The plenary session of the Constitutional Assembly continued on Tuesday 7 May, as did the bilateral meetings. As the plenary sat, another meeting was taking place in a different part of the parlia­mentary premises, where the IFP was holding a workshop detailing its differences with the proposed new constitution. Mario Ambrosini, an IFP adviser, delivered a paper which was a thinly disguised motivation for the IFP's continued boycott of the final proceedings for the adop­tion of the constitution. The paper condemned the bill as an attempt to establish a unitary state under the guise of a devolution of powers to provinces. The party denounced the last minute package of powers for provinces and local government tabled by the ANC and accepted by the Constitutional Committee: 'On its introduction, this Bill has been described by Constitutional Assembly Chairman Cyril Ramaphosa as the birth certificate of a new nation, while on a more attentive analysis it is the advanced death certificate of pluralism, federalism, and freedom of a country which, constitutionally speaking, is committing suicide by instalments'.

At 8 a.m. on Tuesday 7 May the NP's Federal Council executive had another opportunity to review the various formulations and consider whether it would give its support upon adoption. At 10 a.m. the Constitutional Assembly reconvened for its second day of debate but adjourned by noon to allow for possible new amendments and to allow the Constitutional Committee to meet. However, the bilateral meet­ings continued and made it impossible to convene the Constitutional Committee. The Constitutional Assembly finally decided to resume its debate at 5:30 p.m., as the delay meant that the Assembly would only complete its debate very late that evening. The Constitutional Committee finally convened nearly ten hours after it was scheduled to meet, but even then it was interrupted by adjournments on several occasions to allow parties to caucus on different positions. By this time negotiators, who had been through weeks of extremely difficult negotiations over exhausting hours, started becoming irritable. However, for most, including the army of journalists who faithfully witnessed and experienced the trauma and excitement of the process, there was a sense of expectation. For the faithful staff of both the administration and Parliament, it was no different to the experience of an expectant parent waiting to see a newborn after long and difficult labour.

When the members of the Constitutional Committee assembled at 10:45 p.m., an incredible air of excitement ran through the room. By this time, many of the members of the Constitutional Assembly who were attending the plenary debate had squeezed into the old assembly chamber to hear the outcome of the bilateral discussions. Blade Nzimande of the ANC was first to report on the education clause, which had been worked on further. He said it was appropriate that as South Africa drew closer to the twentieth anniversary of the 16 June 1976 uprisings, he was able to present a clause that would 'once and for all close the chapter on apartheid education in this country'. He reported that parties had reached an understanding on the education clause. In terms of the agreement, section 29 (2) was amended to read: Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account:

(a) equity;

(b) practicability; and

(c) the need to redress the results of past racially discriminatory laws and practices.

In conclusion, Nzimande confirmed that the amendment accom­modated most concerns. It posed single-medium institutions as one of the alternatives to be considered by the state in securing the right to be taught in one's home language or the language of one's choice. The NP confirmed the agreement, the PAC reserved its position, and the Freedom Front recorded its objection. The DP was not happy, for agreement with the formulation represented one compromise too many, and it was prepared to make its last stand. Should it fail in this bid, the DP was prepared to vote against the entire text. In support of its complaint, Dene Smuts argued that the degree of independence enjoyed by independent schools be retained. She appealed for a formulation in terms of which the state could not discriminate in giving a basic grant or funding to any school founded on any basic principle or idea. Ms Smuts accordingly proposed the amendment of section 29 by adding the following sentence as subsection (4): 'This provision does not preclude state subsidies for independent educational institutions'. The amendment was accepted.

These compromise amendments were in effect largely responsible for the support of the parties concerned of the entire constitutional text. The next issue was the lockout clause, and William Hofmeyr of the ANC proposed an amendment that came in two parts. The first part involved the insertion of a new section as section 241 into the chapter on general provisions under the title Labour Relations Act (LRA), 1995:

(1) A provision of the Labour Relations Act, 1995 (Act No. 66 of 1995) remains valid, notwithstanding the provisions of the Constitution, until the provision is amended or repealed.

(2) A Bill to amend or repeal a provision of the Labour Relations Act may be introduced in Parliament only after consultation with national federations of trade unions, and employer organisations.

(3) The consultation referred to in subsection (2), including the identification of the federations to be consulted, must be in accordance with an Act of Parliament.

The second part of the amendment involved the deletion of the provision for the lockout in the bill of rights. He confirmed, however, that there was still no full agreement on the matter. To most parties, while they did not agree with the formulation, their opposition to the amendment was not sufficient to warrant voting against the entire constitution. The formulation proposed was an attempt to meet the interests of both business and labour to a certain extent, and it meant that while there would be no right to a lockout in the constitution, it would not exclude legislation dealing with it.

Senator Ray Radue of the NP said the party had consistently held the view that there must be an equitable balance between the rights of employers and employees, especially in the bill of rights. While it was not the best solution, the rights recorded in the LRA were the result of intensive negotiations, and were acceptable to business, labour, and the government. Those labour relations could now only be changed through a consultative process regulated by an Act of Parliament. The NP therefore recorded its strongest protest at the diminution of the employer's right to collective bargaining required by Constitutional Principle XVIII and included in the interim constitution. However, he said that this would not prevent the NP from supporting the consti­tution.

Tony Leon, leader of the DP, complained that the clause represented an outright victory for COSATU. Whatever attitude and response his party took on the constitution on 8 May, he wanted to record this formally so that there could be no accusations of bad faith after the event. He also gave notice that the DP intended to lodge its objection to the certification of the constitution, on the grounds of Constitutional Principle XVIII which recognizes and protects the rights of employers to engage in collective bargaining. It was the view of the DP's Senior Counsels that effect should be given to the requirements of recognition by including in the constitution the right of employers to collective bargaining. However, this would not satisfy the further requirement that the right to collective bargaining be protected. Having given to trade unions the right to strike, there was a fundamental imbalance and, in the view of the DP, a constitutional problem with this clause. Richard Sizani, senior negotiator for the PAC, confirmed its support for the amendment. The chairperson accordingly confirmed the proposed amendment to section 241.

Regarding the property clause, the ANC's Dullah Omar reported agreement that subsection (8) be amended to read: 'No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to address the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 3 6(1)'.

The issue being addressed, he said, was mainly that of land, some­thing for which thousands of people had made sacrifices. Since 1910, and indeed before, millions of people had suffered, for those deprived of the right to vote found that the denial of political rights was used to drive people off the land. Thus, one finds that those who were disenfranchised were also t