This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Democratic Party Discussion Document on Constitutional Proposals
Note: Unless the context indicates differently, any mention of federal government refers to central government, and state or state government refers to the states which will make up the federation.
1. BASIC POINTS OF DEPARTURE
1.1 The Nature of the Constitution
1.1.1 The Democratic Party believes that to be durable and binding, a new constitution for South Africa must be the expression of the will of all the people of our country. As such, it should be the product of negotiation between political leaders, and endorsed by the people as a whole.
1.1.2 Because the new constitution will represent a fundamental break with the past, the DP believes that this constitution must be the founding documentfor the "new South Africa", specifying, amongst other things
Ø. A statement (preamble) of ideals;
Ø. The relationship between the major organs of government, the powers and functions of these, the eligibility of people to serve on them and the method by which they are elected or appointed;
Ø. The division of powers, functions and responsibilities between the various branches of government, and the distribution of powers, functions and responsibilities between the different levels of government;
Ø. The rights of individuals and the obligations of government, and the way in which such rights and obligations are enforced or protected (eg Bill of Rights); and
Ø. The mechanisms by which the constitution or parts of it are protected and/or can be amended.
1.2 The DP believes that the constitution is superior to the ordinary law
1.2.1 The Democratic Party believes that the constitution is more fundamental than the ordinary law. This is so because the constitution determines the basic rights of citizens, and the framework within which the ordinary law is made.
1.2.2 This implies that the constitution and constitutional laws must be less easily amended than the ordinary law.
1.3 The DP believes in the supremacy of the constitution
1.3.1 Because the constitution is more fundamental than the ordinary law, the courts (or some specialised branch of the courts) must be able to render null and void legislative provisions or executive acts which violate the rights of Individuals, or the basic principles contained in the constitution.
1.4 The DP believes that the constitution should be rigid
1.4.1 The Democratic Party believes that the constitution should be beyond the whim of transient majorities in the legislature, and should only be amended by following special procedures which make the amending process much more difficult than the ordinary legislative process. The amending procedure should itself be entrenched to prevent manipulation.
1.4.2 Such a process may involve special majorities, referenda, endorsement by state legislatures or other means. The constitution may provide for different processes of amendment in respect of different aspects of the constitution, but the method of amendment should itself be protected by special procedures, and subject to judicial review.
1.5 The DP believes in the maximum devolution of power
1.5.1 The Democratic Party believes that the people must govern, and that there is no more effective way of giving this expression than for the constitution to provide for a variety of sites of power in which the people themselves can participate in making decisions affecting them.
2. FEDERALISM
2.1 Federalism will distribute power
2.1.1 By providing a variety of different sites of power, federalism enables more people to take part in the process of government. It also brings government closer to the people.
This promotes accountability of political office-bearers to their constituents, and promotes the establishment of a democratic culture.
2.2 Federalism is a defence against tyranny
2.2.1 The Democratic Party believes that an overconcentratlon of power in central government leads to the retention of power for its own sake, and the use of power and patronage for the advantage of the party or group which is in power. South Africa's history is littered with examples of the use of the monopoly of centralised political power to impose an oppressive philosophy on the entire country. A federal structure makes this very much more difficult, and the system also provides a variety of sites of power in which more people can exercise power, making the retention of central government power relatively less important.
2.3 Federalism accommodates pluralism
2.3.1 The Democratic Party accepts the cultural, linguistic, geographic and political pluralism of South Africa. This diversity is a national asset which needs to be developed in a spirit of mutual respect, tolerance and conciliation. Federalism helps to cater for this diversity by multiplying the sites of power.
2.3.2 Moreover, by multiplying sites of power and competition, new and transcending alliances based on regional or common interests can be forged, which can lead to the resolution of problems and issues at a localised level. This will certainly make the resolution of seemingly intractable problems far easier.
2.4 How federalism will be established
2.4.1 Federal constitutions occur in two ways
(a) when formerly sovereign polities surrender part of this sovereignty to supranational legislative, executive and judicial authorities.
(b) when the powers hitherto exercised on central government level are restricted and are consciously and deliberately devolved to regional political authorities.
In South Africa's case, the second route is more likely to be followed.
2.4.2 It is essential, however, that in this process the equal rights, powers and responsibilities of such regional political authorities are written into and entrenched in the constitution. It Is a central tenet of DP policy that the central parliament will enjoy coordinate sovereignty with the state parliaments. It is also essential that the constitution guarantees equitable access by regional political authorities to the resources of the nation as a whole: otherwise any rights, powers and responsibilities of such authorities will be meaningless.
2.5 The Boundaries of the Federation
2.5.1 The Democratic Party accepts the boundaries of the country as established at the time of Union, and believes that the TBVC countries should be part of a common South Africa. The mechanics of how the TBVC states return to form part of South Africa will, however, have to be negotiated with representative leadership in those countries. Within these boundaries of South Africa, various options for the delineation of federal units should be considered.
2.5.2 One option would be to create federal units of roughly equal population, and/or geographic size, and/or wealth and power. Another option would be to create federal states around the present economic development regions. A third alternative would be for federal boundaries to be drawn on a metropole-periphery basis.
2.5.3 The DP envisages 8 to 12 federal states, but the exact number of states and the delimitation of boundaries could be determined by an impartial delimitation commission. However, the following criteria must be taken into account in determining the boundaries:
Ø. The firm rejection of states delineated on racial or ethnic lines;
Ø. Community of interests of the population of an area;
Ø. Economic viability and potential; and
Ø. Administrative effectiveness.
2.6 The Powers of the Central Government and the Federal States
2.6.1 In the process of drawing up a new constitution, the powers exercised by the federal government and those exercised by the states will have to be specifically defined and entrenched.
2.6.2 The federal government will exercise those powers essential to the national interest. All other powers will be exercised by the state governments. The state governments could, for example, handle the following powers; health, local government, licensing, town planning, local taxation, nature conservation and tourism promotion, roads, education, police, prisons and land settlement.
2.6.3 The federal government would exercise Jnter alia the following powers: foreign relations, economic affairs, water affairs, labour, citizenship, currency, inter-state commerce, defence, borrowing on the credit of the government, immigration, foreign trade, customs and excise, national transportation and mineral and energy affairs.
2.6.4 Certain institutions, such as a Federal Investigation Bureau, may require management by both central and federal governments. Joint committees of the central and state governments may be established for the purposes of liaison and cooperation.
2.7 The Structure of State and Local Governments
2.7.1 The structure of state government should be laid down and protected In the constitution. Local government should as far as practical be established on the same basis as first and second tier structures. The question of majorities, entrenched sections and vetoes, where applicable, should be contained in the constitutions of all levels of government. Very importantly, the Bill of Rights must be enforceable at all levels of government and administration.
2.8 Financial Relations between the States and Central Government
2.8.1 Each state shall have the power to raise its own taxes.
2.8.2 Afiscal commission must be established to investigate the reasonable cost to each federal state and to the central federal government of administering the various areas of responsibility assigned to each state in such a way as to ensure equal quality of services as between the various states.
2.8.3 Further, a Federal Finance Council comprising representatives of the federal and state governments and expert bureaucrats should be established. It would examine state budgets and the federal budget to determine the amount of revenue and loan funds which each state could claim from the Federal Treasury.
2.8.4 There are many other possible methods of ensuring that each state receives pro rata its rightful share of financial resources, but whatever mechanism is adopted should be entrenched in the constitution.
3. CENTRAL GOVERNMENT
3.1 Separation of powers
3.1.1 Subject to the executive being accountable to parliament for its administration, there should be the maximum amount of separation of powers between the legislature, the executive and the judiciary.
3.2 The Executive
3.2.1 The DP proposes a (dual) executive consisting of a President, and a Prime Minister together with a Cabinet drawn from and accountable to Parliament.
3.2.2 The President shall be directly elected on the basis of universal adult franchise for a period of seven years. A system of run-offs will ensure that the person elected enjoys majority support.
3.2.3 The President, in addition to being Head of State, will have defined powers, as follows:
(a) he will be commander-in-chief of the defence force and will preside over meetings of the high command of the defence force;
(f) he will appoint the Prime Minister and President of the Senate, and, on the advice of the Prime Minister, will appoint Ministers of State;
(c) he will be available to resolve deadlocks which may occur in the Cabinet;
(d) he will shape foreign policy, and will appoint ambassadors subject to confirmation by the Senate;
(e) he will negotiate treaties, and subject to approval by the Senate, sign them on behalf of the government;
(f) he may declare States of National Disaster and Emergency: provided that Parliament shall not be dissolved during the exercise of emergency powers by the President;
(g) he may proclaim referenda and plebiscites;
(h) he may commute criminal sentences, or grant partial or complete pardon, or declare amnesties;
(i) he may confer titles and honours;
(j) he may communicate with the National Assembly and Senate by message, and will annually address both Houses on the State of the Nation.
3.2.4 The president will appoint a member of the National Assembly as Prime Minister who is capable of forming a Cabinet which enjoys the support of the National Assembly. The Cabinet will be constituted on a proportional basis from representatives of political parties enjoying 10% or more support In the National Assembly. The right to allocate portfolios within the Cabinet shall be vested In the Prime Minister.
3.2.5 Should the Prime Minister and the Cabinet cease to enjoy the confidence of the National Assembly, the President may dissolve the National Assembly and call a general election or, alternatively, nominate someone else as Prime Minister, and call on him to form a Cabinet that does enjoy the confidence of the National Assembly.
3.3 The Legislature
3.3.1 There shall be a bi-cameral legislature consisting of a National Assembly and a Senate. The National Assembly and the Senate will have co-equal powers except in respect of appropriation and other money bills, where the National Assembly will be able to override the objection of the Senate.
3.3.2 The National Assembly will consist of 350 members elected on the basis of proportional representation by all adult citizens at intervals of not more than five years.
3.3.3 The Senate, consisting of 100 members, will be elected as follows:
(a) 66 members will be directly elected by universal franchise on the basis that each state is entitled to an equal number of senators;
(b) 33 members will be indirectly elected by all municipal councillors within a particular state, sitting together as an electoral college, on the basis of proportional representation; and
(c) The President of the Senate, who will be appointed by the President.
3.3.4 The election of the Senate shall take place every seven years on the same day as the election of the President.
3.3.5 In addition to its legislative functions, the Senate will also have special powers to approve treaties and to approve senior appointments to the public service and diplomatic corps recommended by the President.
3.3.6 In cases of legislative deadlock between the National Assembly and the Senate, a standing cimmittee shall be appointed consisting of equal numbers of members of each House to resolve the deadlock.
3.3.7 There shall be a system of inter-house standing committee, with the following specific powers and operating as follows:
(a) the menbers of each house will vote seperately, except in the case of a standing committee set up to resolve a deadlock between the Houses, where voting will take place jointly;
(b) the standing committee will be empowered to introduce legislation to Parliament;
(c) there shall be one standing committee established to oversee the activities of the security forces, and one to oversee "clandestine operations" by the intelligence services;
(d) there will be one standing committee for each Department of State, which will scrutinize each budget vote before submission to Parliament, and which will have the power to summon the Minister, the Chief Accounting Officer and any other official to account for money expended during the previous financial year, and intended expenditure during the forthcomming financial year.
3.4 The Judiciary
3.4.1 There should be a single judicial system for all South Africa. The Federal Supreme Court should be the highest judicial body in the country and should hear appeals to this court from the variou state courts.
3.4.2 A Constitutional Court should be established to interpret the constitution, the Bill of Civil Rights and the Statement of Social, Economic and Cultural Obligations of Government.
3.4.3 Federal Judges should be appointed from the legal profession on the advice of Judicial Appointments Commission representing the judiciary and the legal profession, and approved by the Senate. In making its recommendations, the Judicial Appointments Commission should consider not only demonstrable competence, but also the need for the Bench adequately to reflect the broad population of South Africa.
3.5 Administrative appointments
3.5.1 An efficient and accountable civil service is and essential adjunct to achieving a functional democracy in our country. For regrettable historical reasons, the public service does not remotely reflect the public it serves and this has tended to undermine public confidence int eh administration of South Africa.
3.5.2 The Democratic Party believes in equal opportunity in government service for all qualified applicants and employees, and in the prohibition of discrimination in such employment on the basis of race, colour, ethnicity, gender or creed. This notwithstanding, and in order to redress the imbalances of the past, there should be continuing affirmative action programmes in each government department. These programmes should govern every aspect of personnel proctice in respect of employment, development, advancement and treatment of all employees.
3.5.3 Key senior appointments, as defined, should be made by the Prime Ministerecting on the advice of an independent Senior Appointments Commission, and these appointments should be endorsed by the Senate.
3.5.4 Each federal state would likewise have a civil service charged with the administration of functions under state control .
3.6 The Ombudsperson
3.6.1 A parliamentary ombudspersonshould be appointed to investigate complaints on alleged abuse of power or violation of basic rights and freedomes by the executive, military or police. Such officers should also be appointed in respect of the state legislatures.
3.6.2 The ombudspersons should be independent, given security of tenure and adquate staff, and should have investigative powers. They should be officers of the parliments concerned.
3.6.3
The Auditors-Genseral should be given the same powers, and report in the same way.
4. THE ELECTORAL SYSTEM
4.1 Universal suffrage
4.1.1 All adult citizens, irrespective of race, religion, national origin or gender should have a vote of equal value in elections for representatives of legislative institutions at all levels.
4.2 Regular and Free Elections
4.2.1 A multi-party system is essential to guarantee true democracy and the constitution should guarantee regular and free elections. Such guarantees should include the maximum oeriod between elections, the right of individuals to form and support political parties of their choice, a secret ballot and protection against harassment or intimidation of candidates and voters.
4.3 Representivity
4.3.1 The electoral system must produce a result that ensures that the opinions and various interests of the electorate are fairly represented, and must not be capable of being manipulated at the expense of minorities.
4.4 Proportional Representation
4.4.1 The Democratic Party favours a proportional voting system.
4.4.2 There are a variety of different proportional voting systems applicable in different parts of the world. The one which is selected for South Africa will have to be fair enjoy legitimacy, be workable and be easily understandable even to illiterate voters. Various alternatives are presented in Appendix A for discussion.
5. THE BILL OF CIVIL RIGHTS AND THE STATEMENT OF SOCIAL, ECONOMIC AND CULTURAL OBLIGATIONS OF GOVERNMENT
5.1 The Constitution should contain a Bill of Civil Rights and a Statement of Social, Economic and Cultural Obligations of Government.
(a) Equal protection of the laws,
(b) Personal liberty save by due process of laws in the ordinary courts of the land.
(c) Freedom of speech and expression.
(d) Freedom of movement
(e) Freedom of association.
(f) Freedom of worship.
(g) The right to peaceful assembly.
(h) The right to privacy of home and correspondence.
(i) The right to own, acquire, occupy and dispose of property, and the right to compensation in the event of expropriation.
(j) The right to start and carry on any lawful trade, business, profession or occupation.
(k) The guarantee of regular and free elections.
These rights should be fully justiciable either by the constitutional court or the ordinary courts.
5.3 The Statement of Social, Economic and Cultural Obligations of Government shall contain at least the following:
(a) The obligation of government to respect the national symbols and traditions of groups;
(b) The necessity for government to actively address the huge economic, social and developmental backlogs which exist;
(c) The responsibility to ensure a clean and healthy environment, and to protect the natural resources of the country;
(d) The duty to apply affirmative action programmes in the public sector as long as thses are needed.
6. NATIONAL SYMBOLS
6.1 New national symbols must be adopted which symbolise unity and common nationhood. Because of the potentially divisive effects of adopting national symbols which represent only sections of the community, the greatest amount of consulatation and popular participation aimed at achieving the broadest consensus should precede the adoption of new symbols.
6.2 In the interim, the Democratic the Democratic Party favours an incremental approach, involving the combining of symbols until such time as new symbols are agreed to. In particular, Nkosi Sikelel iAfrika and Die Stem ought to be played at all official occasions until a single nation anthem is decided upon.
7. LANGUAGE
7.1 The Democratic Party upholds the right of all South Africans to speak their own language, althougha single language of record may be required. The various languages of South Africa represent one of our greatest cultural assets and should, therefore, enjoy constititional protection. In addition, languages should be promoted by means of federal and state appropriations for dictionaries, linguistic research and the arts, channelled through cultural councils.
7.2 Each federal state would, in addition to the language of record, be entitled to adopt further languages as official languages.
7.3 The right of linguistic communities to choose mother-tongue education, and to promote their culture, should be constitutionally protected
APPENDIX A
There are many examples in the world of pure proportional representation, and of combinations of proportional representation and constituency representation. The following are some examples:
Alternative 1
(a) South Africa would be divided Into 100 constituencies, each constituency containing as close to the same number of voters as is practical;
(b) Each constituency would return three members to the National Assembly;
(c) Each voter would have two votes for individual condidates by whom the voter would like to be represented in the National Assembly. In addition, the voter would have one vote for a political party of his or her choice;
(d) Each political party would prepare a party list of candidates;
(e) 300 members would thus be directly elected by the constituencies, but 50 additional members would be elected from the national party lists, with a cut-off of 3% in the first election, and subsequently of 5%, to ensure as proportional a reflection of voters' preferences as possible.
Alternative 2
Assumptions:
(1) The total number of registered voters will be about 22 million.
(2) The total number of people who will actually vote in a given election will probably be about 16 million (72%).
(3) The National Assembly will have 300 members, and there will be 10 states.
(4) Each state will be entitled to roughly equal numbers of representatives in the National Assembly, and each state will have 1,6 million votes cast, and will be represented by 30 members.
(5) Each state will be divided into 10 constituencies for elections for the National Assembly, each with approximately 160 000 voters.
Proposals:
(1) Each state will be divided into 50 wards (with approximately 32 000 people who exercise their vote in each), and each ward will elect six people.
(2) This multi-member election could take place on the following (alternative) bases:
(a) Each party would put up a maximum of three candidates, determined by the party, and offered to the voters on a list; or
(b) Each party would draw up a list, as provided in (a), but would be obliged to include at least one member of a minority ethnic group present in that ward; or
(c) The voter would have six votes, one per candidate; or
(d) The voter would have five, four or three votes, one per candidate; or
(e) The voter would have one vote only, either for a party list, contemplated in (a) or (b), or for one of the candidates.
The effect of these proposals would be that the voters would either vote for a party list, or would vote for six or less candidates, according to their preferences.
(3) The 300 people thus elected could then
(a) be the members of the legislative assembly of that state; and
(b) act as an electoral college to elect the 30 members to represent that state in the National Assembly.
(4) The election of the 30 members by this 300-strong electoral college could be:
(a) preferably by means of the single transferable voting system; or
(b) on the basis of a list system. In such a case, the members of the electoral college would have 30 votes, and each party would submit a list of not more than 20 candidates, in the form of
(i) a closed list whereby the member of the electoral college simply votes for the party. In this case, the voter's vote for the closed list would amount to 20 votes, and he/she would then be entitled to use his other 10 votes for the list of another party If he/she so wishes; OR
(ii) an open list (ie. the member of the electoral college is not presented with an ordered list, but with a series of names In alphabetical order). The voter can then vote by marking a space beside the candidate of his choice; he/she could then use the residue of the ten votes in respect of the Iist(s) of another party, if he/she so wishes; OR
(iii) a free list where the voter can cast his/her 30 votes for candidates of different parties, and can even culminate two votes for any one candidate if he/she so wishes.
Ø. (1) The country is divided into 175 constituencies, each of roughly equal size.
Ø. (2) Each party presents to the voters a list of not more than 175 candidates, which forms the official list of the party. This list may also be drawn up on a federal basis, in which case the list would contain proportionately fewer candidates.
Ø. (3) Each voter has two votes - one for a candidate who is standing for election in the constituency, and one for the party of his/her choice. The constituency representative is chosen by a simple majority of votes, and together with other constituency representatives, makes up half the membership of the National Assembly.
Ø. (4) The other 175 members of the National Assembly are elected on the basis of the number of votes cast for the party divided by the total number of votes cast for the various parties, expressed as a percentage. A party will be entitled to one representative off its list for every 0.57% of the votes cast, subject to a 3% cut-off in the first election of the National Assembly, and thereafter a 5% cut-off.