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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
With the public as both audience and participant the constitution-writing started, slowly and tortuously at first but, like a good play, building to a dramatic climax with brinkmanship, intrigue and tension spicing up the plot.
"Here were people who had a common will to get the job done. People of opposing political opinions respected one another. There was a political maturity. A camaraderie. People wanted to find one another and this doesn't happen in history very often ... "-Hassen Ebrahim
There are elements in the story of how the South African constitution was written that have to be flagged at the outset. "Flagged" in the sense of "highlighted" but also in the sense of showing how things were done because these elements have much to do with what became known as "the constitution-writing process".
In the closing weeks of the process "flagged" was a favourite word of the constitutional negotiators. It meant variously: "an important issue that needs to be returned to"; "an issue too hot to handle at this moment"; or "we're delaying the action to increase the tension."
The negotiators understood this; it was part of their language, part of the melodrama. And by melodrama is meant a piece of theatre "which relies on sensational happenings, violent action and improbable events", to use a dictionary definition. In several ways the writing of the constitution had its melodramatic moments. Sensational happenings, violent action and improbable events were frequently a part of this story. But the elements that need to be flagged here are those of time, personalities and political will: they were important, they were frequently hot and they never failed to increase the tension.
TIME: On Monday May 9 1994 the new South African parliament met for its first sitting. It was a bright day and Cape Town was in a festive mood. The last thing anybody was paying attention to was the constitutional clock that started ticking-unheard and unnoticed-as members of parliament raised their hands and committed them-selves to the country and the interim constitution. That very interim constitution stipulated that they had two years to write a new constitution. On Monday May 9 1994, two years seemed to contain more than enough days to do that. And on Monday May 9 1994 the future was so alive with possibilities that a day like Wednesday May 8 1996 simply couldn't be imagined.
PERSONALITIES: Perhaps dramatis personae, characters of the play, would be better. Here would be listed: Cyril Ramaphosa, chairperson: "We will complete it just in time. I am an optimist." Leon Wessels, deputy chairperson: "Everybody thought it would be completed in two or three months. Even the late Joe Slovo thought this." For the rest the cast was large and players fluctuated in prominence but among those with more than walk-on parts were: Baleka Kgositsile, Collins Chabane, Pravin Gordhan, Willie Hofmeyr, Sheila Camerer, Roelf Meyer, Colin Eglin, Dene Smuts, Constand Viljoen, Richard Sizani, and Kenneth Meshoe.
POLITICAL WILL: The plot, the string of events, the pattern of relationships. "This is the magic of it," said Hassen Ebrahim, executive director of the Constitutional Assembly's administration. "Here were people who had a common will to get the job done. People of opposing political opinions respected one another. There was a political maturity. A camaraderie. People wanted to find one another and this doesn't happen in history very often. In fact you could say it flies in the face of history."
What was at work within this element of political will was what some have described as "a kind of dedication" or "a need to confront a major task". What must not be forgotten is that written into the political will were two disparate narratives: the one a history of domination; the other a history of striving for liberation. That at this point they were no longer mutually exclusive histories but had become parts of the same history, goes a long way towards explaining the element of political will. More specifically, what was at work was an idea that was no longer defined by borders on a map, but by what had taken place within those borders, and more importantly, what would take place within those borders in the future.
Having flagged these elements it is worth mentioning one other: the role of the public both as participant and audience. Although the constitution-writing process seemed at times to be wholly incomprehensible from a public perspective, an enormous amount was done to elicit whatever ideas the public had.
By the end of the "process"-a term meant to convey that this was a negotiated, inclusive, open forum-the Constitutional Assembly had spent some R31 million on a public participation programme and received more than two million public submissions. This playing to the public was as much a part of the drafting as were the "closed-door" sessions that characterised the last weeks, days and hours of the negotiations. While these sessions excluded the public they added the melodramatic factors of intrigue and horse-trading which the audience appreciated. By playing to the public in this way the constitution writers, certainly in the final days, turned the process into a big story, front-page news, leads on radio and television bulletins. What the public was being told was that the moment of the flagged issues had arrived, they could be put aside no longer, a climax had been reached. That climax, as in all good plays, was reached slowly, dramatically.
But in the beginning, the very beginning, there was no indication that this was going to be a good piece of theatre. Back then in May, June, July, and early August of 1994 there was nothing to flag and no hint to the audience that something was developing that would be worth watching. In fact matters progressed without surprise and with a certain predictability.
On Tuesday May 24 1994 the Constitutional Assembly-a body of 490 members representing the seven political parties in parliament: the African National Congress (ANC), National Party (NP), Inkatha Freedom Party (IFP), Freedom Front (FF), Democratic Party (DP), Pan-Africanist Congress (PAC), and the African Christian Democratic Party (ACDP)-met for the first time and elected Cyril Ramaphosa chair-person and Leon Wessels deputy chairperson. It was said that the ANC wanted both positions but a spirit of co-operative affiance prevailed.
"There is tough political bargaining ahead," said Cyril Ramaphosa after being given a standing ovation, "but I hope intellectual balance, good humour and farsightedness will be shown."
There was purpose in these words, there were clear indications here of how he wished matters to proceed. With hindsight it can be seen that these words, more or less, set the parameters. Sometimes more, sometimes less.
For the deep winter months of 1994, while a steering committee considered how best to proceed, nothing visible happened.
But at the next Constitutional Assembly meeting on Monday August 15 1994 there were new signs from the politicians. As one journalist put it, they didn't want the process to end up with "last-minute deals being worked out on the backs of envelopes in crowded rooms by tired men with bloodshot eyes."
"No more horse-trading," said Patricia de Lille of the PAC.
"No more late documents because that leads to shoddy decisions," said Douglas Gibson of the DP.
"We are here to rebuild and redevelop South Africa otherwise our new constitution will be worth nothing," said Roelf Meyer of the NP.
"The constitution-making in this house will be a far cry from what it was in Kempton Park," said Walter Felgate of the IFP.
"[Our constitution] should redefine our society and rewrite the history of our country so as to demonstrate and reflect that South Africa is not a European country which happens to be in Africa, but is an African country," said Richard Sizani of the PAC.
"I want it on record", said Kadar Asmal, minis-ter of water affairs and forestry, "that this process will be transparent, the public will be involved, and the mistakes of Kempton Park will be rectified." He also wanted it on record that the ANC would not use its majority to drive through decisions. He referred to the interim constitution as a "peace treaty", a "grand compromise", an "historic document" that should form the basis of a new constitution.
"Hoor, hoor," applauded the politicians.
Earlier Cyril Ramaphosa had talked about setting up "the machinery for the drafting of the constitution". Earlier Pravin Gordhan (ANC) had referred to the necessity for an "engine room" to facilitate the process. It turned out that this "engine room", this "machinery", was being mooted by the steering committee as a "streamlined" Constitutional Committee that could "get on with the work".
"The Constitutional Assembly is not just parliament with a hat on," said Leon Wessels. "We are a separate body which has to develop its own rules and conventions."
Thus the Constitutional Committee came into being, a body of 44 members drawn on a proportional basis from the larger parties, with the smaller parties being granted-in some cases-full representation. Ironically, in the final weeks, this "engine room" wouldn't prevent "tired men with bloodshot eyes" from doing deals on the backs of envelopes but it would get the job done.
At this stage there were 21 months left and some politicians were beginning to indicate they thought 21 months was not enough time to sort out such contentious issues as provincial powers, the role of traditional leaders and various fiscal matters. Even so the buoyant Ramaphosa said he remained optimistic.
Three new players were summoned on to the stage at this August meeting: Pietermaritzburg advocate Louisa Zondo; Mar-ion Sparg, an ANC official (both as deputy directors); and interim constitution stalwart Hassen Ebrahim as executive director. Overnight, they had to set up an administration to support the process.
"We were overwhelmed, and to some extent frightened by the nature of the assignment," recalls Ebrahim. "We had to conceptualise the process and set up an administration simultaneously. I think it was a sheer stroke of good fortune-our stars were in the right constellation-that we were successful, that we were able to make reality out of dreams and political rhetoric.
"There had never been a process like this any-where. When we started everybody said it was impossible to do it within two years. I think we did the impossible by involving as many politicians and members of the public as we could."
WHENEVER negotiations reached an impasse, two men would somehow always find a way through: Constitutional Assembly chairperson and ANC secretary-general Cyril Ramaphosa and his National Party counter-part, chief negotiator Roelf Meyer. Together they became known as "the channel", and "the channel" survived for more than three years.
Meyer is a gentle man whose slight frame came to belie his political stature. In 1993, after the collapse of the second phase of talks at Codesa (the Congress for a Democratic South Africa), he took over from then cabinet colleague Tertius Delport as the NP government's chief negotiator.
This promotion set him up in what became a remarkable working relationship with Ramaphosa-an association that extended beyond the normal business of constitution-making and ripened, despite their differences, into deep trust and friendship.
That the conservatives within Meyer's party were sceptical of his closeness to Ramaphosa was to be expected given his political antecedents.
While doing his B.Com. and LLB degrees at the University of the Orangey Free State he was national president of the conservative Afrikaanse Studentebond. Later he became national chairman of the Junior Rapportryers movement, an adjunct of the elite, secretive organisation of Afrikaner leaders, the Broederbond, in which was spawned the Nationalists' early moves towards constitutional reform.
Meyer came to parliament in 1979. He served in a number of portfolios in the National Party, becoming deputy minis-ter of law and order. He was then appointed deputy to Gerrit Viljoen, then minister of constitutional development (and chairman of the Broederbond). Meyer also served briefly as minister of defence before taking over as minister of constitutional development. He became the first minister for provincial affairs and constitutional development in the Government of National Unity.
As the NP's chief participant in the negotiations for the new constitution, Meyer was responsible for securing the best deal for an NP role in government after 1999, when the term of the Government of National Unity is set to expire.
The NP believed it was in the national interest that the constitution should provide for power-sharing among the main political parties beyond 1999. This would oblige the ruling party-assumed to be the ANC-to consult other parties on executive matters of national importance. But the NP failed to secure this constitutional objective and withdrew from the Government of National Unity (GNU) the day after parliament approved the constitution.
For Meyer it had not been in vain, however. He and Ramaphosa are credited with being the midwives of the constitution. Throughout the talks they were a familiar, comforting sight: this odd couple standing in a corridor in the early hours of the morning-Ramaphosa bleary-eyed and Meyer's hand resting on a cheek-trying to find a compromise to a problematic clause. When critical decisions had to be taken it was this "channel" that communicated with the "principals"-the parties' leaders-to get direction.
At the height of the talks, and in order to rebuild the party's faltering base, the NP withdrew Meyer from the GNU and appointed him its secretary-general, but he continued in his key negotiating role. On the day the constitution was adopted, Ramaphosa had special words for Meyer: "I wish to say a special thank you to Roelf Meyer. I thank him for being a negotiating partner, and for negotiating not only the transitional or interim constitution but also this constitution. I extend my deep-felt gratitude to him." Meyer's role, like Ramaphosa's, has proved historic.
Meyer's contribution to the process will remain etched in the minds of his compatriots,-CYRIL MADLALA
MOHAMMED VALLI MOOSA
KNOWN as "Valli", the minister of provincial affairs and constitutional development represents some of the best combative instincts of the ANC's internal resistance during the eighties.
Like several leaders of the Mass Democratic Movement, Valli honed his considerable talent as a branch executive member of the Black Consciousness Movement-aligned South African Students' Organisation (SASO), before it was banned in 1977.
A former teacher whose university majors were in mathematics and physics, Moosa campaigned vigorously on behalf of the Natal Indian Congress and the Transvaal Indian Congress against the apartheid government's institutional elaborations of separate development, such as local affairs committees for Indians. He then helped to establish the United Democratic Front (UDF) in the early and mid-eighties, playing an important part in mobilising popular resistance to apartheid.
In 1988, during one 18-month spell in detention, Moosa and fellow activists Murphy Morobe and Vusi Khanyile escaped and sought refuge in the United States consulate in Johannesburg. They spent five weeks holed up there before regaining their freedom.
In 1989 and 1990 he was a member of the National Reception Committee that organised the post-release programmes for imprisoned ANC leaders, and when the ANC was unbanned in February 1990 he was seconded to the ANC by the UDF.
He was elected to the national executive committee in 1991 and was a member of the ANC's negotiating team at Codesa. In May 1994 Valli Moosa was appointed deputy minister of provincial affairs and constitutional affairs, serving under two National Party ministers, Roelf Meyer and Chris Fismer, for two years until the NP withdrew from the Government of National Unity. In July 1996 he assumed full responsibility for the government's part in bringing the constitution-making process to a head.
A member of the management team during the constitutional negotiations, Moosa was tough without being robust, and resilient without being offensive. But even for him, the tense final days prior to the adoption of the constitution were a test of nerve.
"It was only after the voting, and when the results were announced that I finally believed that we really had made it," he said.-CYRIL MADLALA