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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
A Very Distant Deadline
In May 1995 Cyril Rarnaphosa reported that everything was going accordinq to plait. By August it was announced the first draft would be ready nearly three months late, this disjuncture between public staierrient and political reality was a preview of drama to come.
In late 1994, with time in hand, the negotiators afforded themselves the luxury of making time an issue. The Constitutional Assembly's administrators thought otherwise. Meanwhile, the Inkatha Freedom Party was planning to quit, and demonstrators would shortly press their case.
Early in September 1994 the Constitutional Assembly sanctioned the creation of six theme committees made up of legal experts to collect information, ideas, views, and submissions from political parties, interest groups, and individuals on issues that would come to form the content of the constitution. In the following months, through public hearings, seminars and workshops they became the side-shows in a play that was as yet seemingly without a plot. But without them, without the work they put into compiling reports on such topics as the nature of the democratic state, the structure of government, relationships between levels of government, fundamental rights, the judiciary, specialised are- as of government (such as the police force or defence force), there would have been no plot.
However, at the early September meeting, sugestions of discontent began to spill into the public domain.
We don't want to stop process, said IFP MPs, but before the elections the ANC and the National Party had promised the IFP that certain outstanding issues would be submitted to international mediation. It was time to make good this promise.
Clearly no one else at the meeting was much interested in making good the promise. Clearly they wanted the issue to go away. Of course it wouldn't. It-the subject of international mediation-and the question of the two-year deadline became themes. In the latter case it was a theme that would work itself more and more forcefully into the plot. So in October at a briefing session for the six theme committees Andre Fourie of the National Party and Ruth Rabinowitz of the IFP pressed for more negotiating time.
"What's the rush?" asked Fourie. "Why can't we go to the cabinet and ask for another year?" Two weeks later, in November, Cyril Ramaphosa told the Constitutional Committee: "I do not think we will have a problem [in making the deadline] ... because we will complete it just in time. I am an eternal optimist."
This optimism was in even greater evidence early in December at a meeting to adopt a work plan for the coming year: "This means", he told MPs, "that when we resume work in the new year, we will move straight on to debate substantive issues relating to the new constitution. It is remarkable that we have reached this stage of the process without any hurdles."
As if to remind Ramaphosa that there were indeed "hurdles" which couldn't be ignored, the IFP started talking a week later about walking out of parliament. At the end of the month Mangosuthu Buthelezi told a rally at Msinga: "From the conduct of members of the ANC when international mediation is mentioned, I have no hope that the final constitution will be written by consensus. Majoritarianism seems to be the order of the day in the Constitutional Assembly."
These were signals that had to be flagged. They were important, they were hot-and they created tension.
Nevertheless, working steadily beneath this political posturing, the theme committees and the Constitutional Committee had been holding weekly meetings to produce the "work plan" that made Cyril Ramaphosa so optimistic. The plan was nothing less than the means to generate the political will.
Hassen Ebrahim said later: "That work plan was the core of the process. Without it we would not have made it. Without it there wouldn't have been a constitution."
Marion Sparg: "Right from the beginning we did detailed time-planning to really imprint on the politicians how tight the deadlines were. Cyril Ramaphosa was insistent on meeting the May 8 1996 deadline which became part of the broader management policy. In a sense by continually stressing this point it became a public demand."
If the Constitutional Assembly's first six months had been devoted to planning, in the next nine months it had to come up with the goods. The plan called for a first draft by August 1995.
When, in January 1995, Hassen Ebrahim contemplated what had to be done during the year, he felt his blood quickening: "There was no book to work from, and we faced a punishing schedule of meetings. At times I didn't want to think about it."
By February Ebrahim's quickening pulse was being matched by events.
On February 2 the first deadline for public submissions came due.
On February 11 the Constitutional Public Meetings programme was launched at Paarl before an audience of 600 people. The press called it a "road-show". They said it was characterised by a "carnival-like atmosphere".
At the meeting Ramaphosa said, "We want participation by all the people of this country."
Afterwards, the PAC's somewhat jaundiced Richard Sizani commented: "At the World Trade Centre we had the Cyril and Roelf show and now we have the Cyril and Leon show."
Throughout February and into March a further nine public meetings were held in places ranging from Nelspruit and Phalaborwa to Ivory Park, Kuboes and Saldanha.
In the press, on radio and television the public were being exhorted to have their say because it was "your right to decide your constitutional rights".
At the meetings 5 000 turned up to ask for things as disparate and strange as the right to more public libraries, or the right to pay lobola (bride price) in cattle only. The Constitutional Assembly secretaries noted these requests, filing everything into the expanding databases.
What was extraordinary was that when the constitutional people arrived at these far-flung meetings there were people there who had decided it was worth coming to hear them. Often these people hadn't a clue what a constitution was and often there wasn't a word for it in their language. But they quickly got the message, and soon let their thoughts and feelings be known.
Leon Wessels found the project one of the most exciting initiated by the Constitutional Assembly: "Going to the people and explaining the process was a wonderful experience. Sitting out there in the bundu with politicians from all the parties and listening to them explaining the various points of view, that was wonderful."
"It was the first time in our history that politicians have gone to the people without playing politics or asking for votes," Hassen Ebrahim observed. "I hope it's a lesson that will be pursued in our politics."
While it was wonderful listening to these people, some equally wonderful things were happening in parliament.
The IFP's continual calls for "international mediation" had led to talks with Roelf Meyer in his capacity as minister of provincial affairs and constitutional development. But these had broken down and late in February the IFP had walked out of the CA.
At an IFP meeting in Ulundi on March 4 1995 to discuss the turn of events the Youth Brigade demanded an "immediate pullout from the Constitutional Assembly" but Inkatha's elders thought a 30-day breathing space before making a decision would be wiser. Nevertheless they resolved that a constitution written without their support was not a constitution they would accept.
Two days before their "breathing space" expired, Cyril Ramaphosa tried the role of the pacifier. "The constitution that we draft must include all the parties and especially the IFP," he said. "We hope that good sense finally prevails with the leadership of the IFP and that they realise the national importance of their participation in the structure of government and also the Constitutional Assembly."
It was not to be. Before the week was out the IFP had cleared their desks and left.
Their going altered the arithmetical permutations when it came to voting. According to the interim constitution the new constitution had to be passed by a two-thirds majority, 327 votes. The ANC was 15 short of this. Even though everyone spoke of a "consensus-seeking process" the power relations shifted slightly and the National Party became the main trading partner.
Not that trading was on the politicians' minds in the winter of 1995. Instead the second phase of the Constitutional Public Meetings programme started; it would hold 18 hearings in primarily rural areas by the end of June. "National Sector Hearings" were also under way in Pretoria, Johannesburg and Cape Town, dealing with business, children's rights, traditional leaders, religious groups, youth, labour, women.
In addition the Constitutional Education Programme was holding workshops and seminars in a bid to help people understand what went into making a constitution. There were many weekends during May and June when the co-ordinators of this programme would have two hearings, four public meetings and as many as 12 workshops running simultaneously in different parts of the country.
These hearings and meetings meant issues began to feature on television, radio, and in the news pages and leading articles of city news-papers. Possibly for the first time since the Constitutional Assembly had been convened in mid-1994, it began to be seen in less esoteric terms. Here were issues that made a difference in day-to-day life; issues that could not be left to the politicians and the lawyers. People needed to have their say and they found the Constitutional Assembly more than willing to listen. Hanging, abortion, hate speech, fiscal stability, land reform, the right to strike, the right to lock-out, the concept of the secular state-all began to exercise the public pen.
In May, with the help of the University of Cape Town, the public could, for the first time, read Constitutional Assembly documents and make submissions using the Internet. Soon the Web site's "Home Page" was attracting an aver-age of 100 people a day from 46 countries.
"This is a foretaste of what will happen in the future," Julien Hofman of the law faculty and the project's co-ordinator predicted. "This will be a model for enabling a greater proportion to become involved in the business of government."
But for others, virtual reality was a poor substitute for a banner-waving march. At the prompting of the African Christian Democratic Party and The Christian Voice, 10 000 Christian activists gathered to march through Cape Town. Outside parliament they warned Cyril Ramaphosa that a government that did not respect God in its legislation and constitution, and did not honour God's authority, was facing "dire consequences".
"We will not do away with God in the new constitution," replied Cyril Ramaphosa, clutching a Bible for emphasis. "The right to belief and worship will have a special place in the constitution."
"Jesus! Jesus! Jesus!" shouted the thousands crowding the streets. It was a shout that would be heard again a few days before the vote was taken on the final constitution.
To those who were watching the process the elements of time, personalities and political will were not greatly apparent in the winter of 1995. There was Cyril Ramaphosa but from a distance there seemed to be only Cyril Ramaphosa and the three elements seemed to be combined in him. For instance, on May 25 he told a press briefing that everything was going according to the work plan and that, no, the IFP walk-out hadn't delayed matters. In fact he was even talking about the IFP returning.
"We are hoping that with the moves under way the IFP will find its way clear soon to return to the Constitutional Assembly," he said.
However, in August it was reported that a deadlock-breaking subcommittee had been formed and that the first draft of the constitution would be ready by October or November, three months later than planned.
"The real hard bargaining has still to begin," said Cyril Ramaphosa. "Some will happen now but quite a lot of it will be next year. We believe we have made a lot of progress."
Here was where the disjuncture between the public statement and the political reality first manifested itself. Here was a preview of the drama that was to follow. And here also was the moment and motive for a new machine.
The deadlock-breaking subcommittee was tasked to take a bird's-eye view of the process and move things along whenever deadlocks occurred. It became known as "the bird".
In early August "the bird" faced three bulky reports listing proposals from various theme committees as well as contentious issues. Cyril Ramaphosa was confident that "the bird" would provide solutions. "You will all be surprised," he said. "You will stand up and applaud."
But later that month "the bird" had made no headway on such controversial issues as the role and independence of government, the division of powers between the provincial and central government, the role of the Auditor-General and the Reserve Bank. "We have reached the point where only bilateral meetings between the parties can enhance the process," said Cyril Ramaphosa, as cool about matters as ever. It was a sign that the salad days were over and the political process was beginning. From now on the flagged elements-time, personalities, political will-would start to influence matters.
It could also have been asked at the end of August 1995 why, if things had been going so well, the administration chose to table a report proposing a six-month delay in the process? Hassen Ebrahim and his two deputy directors, after meeting with all the political parties, had been persuaded that the deadline was impossible: on some issues the parties were just too far apart. In discussions with Ramaphosa and Wessels the need for more time was reluctantly agreed. When the Constitutional Assembly met on August 25 1995, therefore, Ebrahim tabled a document calling for more time.
It produced a reaction, but not the one he had expected. Instead of nodding sagely at this inevitability, the political parties, especially the ANC, reaffirmed their commitment to the May 1996 deadline regardless of political pressure. The National Party, Democratic Party and Freedom Front followed suit although they left their options open by saying they wanted to re-evaluate the process three or four months hence. Nevertheless this revealed the extent of the political will and showed how the politicians intended to proceed.
At the same time came an agreement with parliament that a specific schedule for Constitutional Assembly meetings be prepared. Until then parliament and the Constitutional Assembly had met simultaneously which hadn't helped progress in the Constitutional Assembly. But now with political negotiations beginning-albeit tentatively-more space and time were needed.
By early October 1995 the Constitutional Assembly was presented with what Cyril Ramaphosa called an "historic milestone"-the first working draft of 130 pages with revisions.
"For the first time since we started we have before us a composite draft constitution that is near completion. We are getting quite close to finalising the work that we were given to do," said the ebullient chairperson.
"While the number of issues that remain outstanding is substantial, it is self-evident that the CA may be able to complete its assignment in due time," said a more cautious Ebrahim.
However the draft contained "holes" and required a number of refinements on a range of problematic issues. In a 32-page document, Out-standing Issues, the technical advisers listed more than 30 contentious matters on which parties needed to reach agreement in principle, and some 130 others that needed refinement by negotiation. The draft didn't spell out the relationship between central and provincial government and was like-wise quiet on such issues as the Senate and its role, language policy and traditional leaders.
In a Constitutional Committee meeting on October 10 1995 the nature of the "political will" manifested itself for the first time. Before, there had been discussions on issues of principle and the need for research and assessment. But now, with a document in their hands, the politicians reacted true to form.
Withdraw the draft, demanded the National Party; it doesn't reflect the constitution-making process. More specifically, Andre Fourie called it a "non-document". "We disagree fundamentally," said Sheila Camerer about a property clause linked to land reform in the bill of rights.
Similar sentiments came from the Democratic Party. "The document fails to reflect some of the agreements or changes that have taken place in bilateral meetings," said Colin Eglin. He conceded, however, that it was going in "the right direction".
To the Pan-Africanist Congress there were improvements on the interim constitution but it still represented what Richard Sizani described as a largely "Western liberal constitutional order". As far as he was concerned no attempt had been made to accommodate the "African experience" and the draft continued to marginalise traditional institutions, law and authority.
Cyril Ramaphosa made placatory noises. No one, he said, was "bound hand and foot" to the draft. "This is a report by a technical committee that is trying to help us reach agreement," he said.
This, however, didn't stop the National Party from issuing a statement: "We have serious reservations about several matters addressed in the working draft. Some others we totally disagree with. But we will continue in a consensus-seeking way to discuss the proposals with all parties."
The ANC claimed that significant progress had been made in reaching consensus on many aspects of the final constitution. There had been a narrowing of differences on "many vital issues", they thought.
The draft had been put together by what was known as the technical refinement team headed by Canadian lawyer
Phil Knight, who specialised in drafting legal documents in plain language. Rendering provisions in plain language was part of the Constitutional Assembly's ideal of producing a constitution capable of being understood by ordinary men and women. Phil Knight was the person designated to make this happen. He was not new to South Africa, nor to this sort of task, having worked for a few government departments on phrasing new legislation in plain language.
He remembers the drafting months of September and October 1995 as being a time of vigorous debate among the drafters. "We were breaking ground and devising strategies and that led to some pretty heated discussion. Just as the politicians had to negotiate through their political differences so we had to negotiate words."
The working draft was approved by the Constitutional Assembly early in November and published on November 22 1995. The public was given three months to comment. Within days some 1 500 copies had been requested by organisations and members of the public. Over the next few months the Constitutional Education Pro-gramme would hold workshops and seminars for some 10 000 people throughout the country. A special edition of the Constitutional Assembly's newsletter Constitutional Talk would be devoted to the working draft and some four million copies would be distributed as inserts in newspapers, through the taxi network, through direct mail and knock-and-drop. Television and radio programmes would devote hours to the. subject in all 11 languages and for those with a telephone there would always be the Telkom-sponsored Talkline where some 10 000 callers would get sound-bite briefings and leave messages. Advertisements proclaimed: "Securing your rights, securing your future," or "One law for one nation."
At the same time attempts were being made to draw Inkatha back into the process. First there was a meeting in early November between the ANC and the National Party to explore the ANC's position on federalism. Then Cyril Ramaphosa and Danie Schutte-the National Party's leader in KwaZulu-Natal-met to discuss the nature of the provincial powers in the constitution. And then, when the working draft was published, Cyril Ramaphosa made a public attempt to re-engage Mangosuthu Buthelezi.
"I will be seeking to meet Chief Buthelezi to hand over this draft constitution to him and once again invite the IFP to come back to the constitution-making process. I want to point out to him that it is important, it is in the interests of South Africa that the IFP should come back into the constitution-making body. When they read this constitution I am sure they will see that this is the type of constitution that is good for the country."
Buthelezi replied tersely: "I do not expect much to come out of a meeting at this stage." His expectations were partly right. In the end there was no meeting for anything to be forth-coming from.
WHEN General Constand Viljoen retired as chief of the South African Defence Force in 1985 he had his mind set on farming cattle and irrigation crops. But the change that swept through the country landed this veteran of South Africa's border wars in the front line of a new and very different battle-that of winning over enemies through negotiation and consensus.
As head of the South African Army from 1976, and the Defence Force from 1980, General Viljoen led the military forces charged with countering the "total onslaught" perceived by the government of P W Botha as a Marxist plot to overthrow the state.
Eight years into his retirement, General Viljoen succumbed to pressure by a large group of right-wing Afrikaners that he should venture into politics. The Afrikaner Volksfront was formed in 1993 to secure the interests of the Afrikaner nation during South Africa's transition to majority rule.
As the country prepared for the 1994 democratic election, and with right-wing Afrikaners in turmoil over whether to take part or not, General Viljoen courageously registered the Freedom Front, literally in the final minutes before a crucial deadline in February 1994, with the object of negotiating self-determination for the Afrikaner nation if, during the election, sufficient support for it was demonstrated.
The party secured 640000 votes and nine seats in parliament and the General found himself on his way to the constitutional talks to negotiate self-determination for his people.
Concise, to the point, and not prone to playing to the media as some of the negotiators were, the steel-eyed ever-courteous Viljoen was the image of a man with a mission. Fellow negotiators called him "General".
Few who witnessed the final stages of the negotiations will forget the unmistakable glint of joy in those eyes when agreement was reached: one of six institutions to strengthen constitutional democracy would be the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.
While this fell far short of territorial autonomy for the Afrikaner, Viljoen was realistic: "What more could we have wished for?" asked this soldier statesman.-CYRIL MADLALA
THE chief whip of the Pan-Africanist Congress of Azania came to the constitutional negotiations well equipped for the task, having taught constitutional law in Australia, New Zealand and the Transkei. He represented, however, a party which had virtually been wiped out by the ANC in the 1994 election and whose rallying call for the restoration of the land to the Africans had failed to galvanize support for an organisation battling with a crisis in leadership.
Richard Sizani and Patricia de Lille were left to hoist the Africanist flag at the negotiations.
He had gone into exile in Lesotho in 1981.
From the London School of Economics he obtained an LLM degree with courses in comparative constitutional law, administrative law and international protection of human rights. He was later awarded an LLM degree in international law by the Australian National University where he taught constitutional law. In 1991 he lectured at the Waikato Law School in New Zealand, again in constitutional law.
He returned to South Africa in February 1992 and, prior to his election to parliament, occupied a senior post at the University of Transkei, teaching constitutional law, administrative law, public international law and human rights.
A member of the management committee of the Constitutional Assembly, Sizani argued for a unitary state and resisted to the end what he called the "balkanisation" of South Africa by the granting of more powers to the provinces.
Despite warnings about the "spectre of overgovernment", Sizani gave qualified support to the empowerment of the provinces through the new National Council of Provinces which will replace the Senate.-CYRIL MADLALA