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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
In the Shadow of the Clock
Faced with 65 important unresolved issues, and with just three months left, the negotiators retreated behind closed doors where, after intense and prolonged debate, some compromises were made. This gave the technical team enough material to start drawing up a "stepping-stone" document.
The ANC wanted a ban on what was being called "hate speech" but to the Democratic Party and the National Party this was at best "unhealthy". Banning hate speech would send a "powerful message" that this type of behaviour would not be tolerated in a democratic society, said Willie Hofmeyr (ANC).
For December 1995 and January 1996 the constitution took a holiday. Some politicians, and the panel of experts advising them, went to Britain and Germany to be briefed on other constitutional models. For those two months, therefore, it was hard for the audience to tell what sort of play this would turn out to be. People accessing the Constitutional Assembly's website will have found nothing new between November 1995 and February 8 1996.
The apparent inactivity was deceptive, however: it was the calm before the storm. For during December 1995 and January 1996, the only flagged element still operative was time. By the beginning of February there were only three months left.
"The politicians were still fairly relaxed about the deadline," recalls Marion Sparg of the Constitutional Assembly's directorate. "We weren't, however. We knew how long it took to process submissions so I would say we went into 1996 optimistic but not as sure as the politicians that we were going to make the deadline."
Early in February it emerged that there were 65 contentious issues needing attention. Cyril Ramaphosa was talking about finalising the negotiations at the end of March to allow for technical refinements and the plain language drafting during April. But judging by the debates he seemed to be asking for too much.
Arguments about property, equality, the shape of the National Assembly, the courts and administration of justice were heating the political temperature. As was the freedom of expression clause in the bill of rights, glowing now like a hot coal. The ANC wanted a ban on what was being called THE MAKING OF THE CONSTITUTION "hate speech" but to the Democratic Party and the National Party this was at best "unhealthy". Banning hate speech would send a "powerful message" that this type of behaviour would not be tolerated in a democratic society where equality and human dignity were fundamental, said Willie Hofmeyr (ANC). "It's better for this type of speech to be heard and the consequences dealt with," said Dene Smuts (DP). "In a democracy everyone has the right to express their views."
When the death penalty entered the debate on the right-to-life clause deputy chairperson Leon Wessels (NP) heard such radically opposed statements that he realised it was meaningless even to think of seeking consensus.
"Listen to the voice of the ordinary people," said Rev Kenneth Meshoe (ACDP). "They want the death penalty back."
"Playing on the emotions of the people is not the best way to handle this issue," retorted Mavivi Myakayaka-Manzini (ANC).
"Let us not forget the use of the death penalty in this country in the past and how it was applied," said Richard Sizani (PAC).
"I'm stopping this debate," ruled Leon Wessels. "Your deeply held convictions are unlikely to be resolved here." And certainly not in public, as became apparent in February.
The ANC thought the minority parties were being obstructionist. Pravin Gordhan said: "The minority parties are often concerned not with creating a democratic state, but rather checking the power of the majority party in the interest of the minority groups, which are often racially based. The debate is often masked in democratic terms, but it is frequently used to protect the rights of the privileged," he argued.
Not true, replied the Freedom Front, Democratic Party and National Party. We want to ensure minority parties have a say in future government.
Despite this, Roelf Meyer was confident that the "climate" was "conducive to compromise and negotiating". There was, he said, a "good spirit among parties" but they needed to "negotiate behind closed doors so we can allow politicians to change their minds and positions gracefully."
During March, as the fourth edition of the refined working draft was published, it became clear to Ramaphosa, Wessels and Hassen Ebrahim that it was time to retreat behind closed doors.
Several issues were continually firing up the rhetoric. Where should parliament be situated: Cape Town or Pretoria? Was it feasible to maintain equal status among 11 official languages? Should the flag and anthem be changed? The bill of rights was a minefield. The degree to which property rights would be protected was equally fraught, as were the right to life and its impact on abortion and the death penalty, labour's right to strike versus the employer's right to lock strikers out. The relationship between the national governments and the nine provincial governments was fundamental to the constitutional balance of power within the state. Right-wing Afrikanerdom was demanding self-determination in the form of a volkstaat, while their more centrist compatriots were insisting on elaborate mechanisms and powers for the protection of cultural minorities.
And yet to watch the Constitutional Assembly's late-March session from the public gallery was perhaps to be misled into thinking that, these outstanding issues notwithstanding, everything would soon be resolved. On Friday March 29 1996, the meeting to adopt a new working procedure developed what Leon Wessels called "a carnival atmosphere". A few delegates made speeches but these were more out of form than conviction because, as Meyer quipped to Ramaphosa, the matter before them was "all so simple that even you and I can understand it." Little more than an hour later the sitting was over.
Although crisis still lay ahead, what was agreed at that sitting reduced the pressure on the May 8 deadline less than six weeks away. Debate and negotiation could continue now right up until the last moment-as indeed it would.
The new procedure allowed for three stages in the acceptance of the constitution. In the first stage, the draft constitution would go before the Constitutional Assembly in the form of a bill and be debated. In the second stage the Constitutional Committee would discuss proposed amendments and submit a report on their decisions to the Constitutional Assembly. Finally the Constitutional Assembly would vote on the new constitution.
Perhaps the "carnival atmosphere" disguised the real message: what the public was actually being prepared for was that rough times lay ahead. While this was difficult to discern through the bonhomie and the buoyancy of the chairperson and his deputy, the fact was that there were a number of sticking points which would still be there six weeks later when the approaching dead-line was being measured, not in days or weeks, but in hours.
One would also do well to remember that the vexatious question of education in a multi-cultural society had not yet become a major concern for the constitutional drafters-it was on the minds of some but it wasn't yet lending heat to the fire. Ramaphosa and the ANC's educational working group had held meetings with such organisations as the Federasie van Afrikaanse Kultuurvereniginge (FAK), various Afrikaans churches, and the political parties. There had been mutterings of dissatisfaction. But the focus of debate and media attention was still on the right to life, the death penalty and abortion.
Nobody seemed to be paying too much attention to the FAK's Henno Cronjê when he said, "If this [demand for monolingual Afrikaans schools] doesn't come right, it has serious consequences for reconciliation." Perhaps this was just too sensitive an issue to face on Friday March 29 1996.
Perhaps, too, the "carnival atmosphere" during the hearing and afterwards belied the seriousness of the coming week when delegates and their advisers would meet at what became known in the press as the "Arniston bosberaad".
The word bosberaad first entered South Africa's political lexicon early in the nineties through the medium of the negotiating process. Literally translated it means "bush conference" but conveys the broader sense of a retreat-by a group of leaders, strategists or negotiators-to uninterrupted privacy in which effort is concentrated on developing strategy or finding solutions to problems.
In the history of bosberaads, there have been few more critical than that near Arniston on the coast south-east of Cape Town. Here, at a former missile testing station, the politicians met for their first closed-door sessions. The choice of venue was not without irony. That the press and public were kept beyond the barbed-wire fences did not go unremarked.
And yet Arniston was deeply necessary. Compromises had to be found and the process of compromising is not always dignified. There are moments when, for it to happen at all, it has to happen in the dark where the blushing cannot be seen. Arniston was a good place for that. It felt more like the venue for a marketing conference than the place where the way a nation perceives itself would come to be decided. Yet, after the welcoming tea and biscuits, the atmosphere at the first plenary session was almost grim.
"This looks like a session of the United Nations," said Cyril Ramaphosa. "You all look so serious." He glanced at the delegates arranged in a U before him. "There are people here wearing jackets and ties," he said. "I'm making a ruling that there are to be no ties and no jackets."
It was a double-edged directive which suggested the need both for hard work and for delegates to loosen up their negotiating positions.
"You've got to get to grips with the outstanding issues and finalise them," he continued. "The eyes of the nation are on us but also we've got to do this for ourselves."
And to some extent they did.
"This is a better way of writing a constitution than through a referendum, or a revolution," commented one of the legal advisers. "Here you have a bunch of people who are prepared to shout at one another and work long hours because they believe in it; they have the political will. When I see them working at solving their differences I don't think a revolution is a possibility anymore."
Other voices were more chary. "They're going round and round in circles, and I watched them doing this all last year," said a disgruntled member of the secretariat. As the tapes of the debates began to stack up, each representing another 90 minutes of argument, she could be forgiven for her weariness.
Elsewhere that single-minded wish-fulfilling determination to will the process to a proper conclusion was evident, as always, in Ramaphosa. "I'm happy," he said at the end of the second day's negotiations. "I'm tired but now I know we'll get there. One of the advantages of taking people away is that they get things done. They've got no option."
True, they had no option. They also heard an irate Ramaphosa telling the bill of rights commit-tee to "stop the bullshit". Both factors helped.
The things they got done during the sessions, in the corridors at three in the morning, or over a game of pool in the late afternoon, enabled the technical advisers to start drawing up the final draft of the constitution. However, the deadlocks on some of the issues had still not been broken. Progress was said to have been made on the property clause, but the right-to-life clause and the labour issues were unresolved. Movement was reported on the provincial powers but there was sounded, too, a note of caution.
"There will still be a hell of a lot of work to do when we get back," said Roelf Meyer.
"We're not arguing about the principles of the constitution," said Willie Hofmeyr, "but about the elements. I think a lot of things will be decided at the last moment."
Hofmeyr's prediction proved accurate but he may have been the only person prepared to contemplate this possibility at the Constitutional Committee meeting of April 4 1996. After the intensity of the Arniston debates, all the others wanted to do was tell the technical refinement team to take away the amendments and the changes and the new agreements and produce the fifth edition of the working draft. And then what they wanted was to get away for the Easter week-end and catch up on the sleep they had been forced to give up in Arniston.
During the next 10 days the constitutional story-at least from the outside-went quiet. In the offices of the technical refinement team, how-ever, it was anything but quiet. There were no raised tempers but there was an element of tension, a brittleness, an electricity that would keep these people at the edge of their nerves for the next 33 days. "At that point", said plain language expert Phil Knight, "it seemed most issues were resolved and what we needed to do was bring the whole thing up to date by incorporating all the decisions. We had to make sure that we now had the stepping-stone to the bill."
On Monday April 15 1996 that "stepping-stone" was put before the Constitutional Committee. According to the schedule the committee had only four days to produce a bill that would have to go before the Constitutional Assembly at the beginning of the following week. This was not a happy prospect. The "carnival atmosphere" was quite dispelled.
In fact by the middle of April South Africa had become a different country. To borrow from the language of poker: the ante was being upped. For one thing the Truth and Reconciliation Commission had held some public meetings and was about to hold its first official sessions in East Lon-don, sessions that would cut deeply into the pain of apartheid. For another the financial press was reporting a slump in business sentiment following a 12% decline in the rand since February as well as heightened tensions between the ANC and the IFP in the run-up to local elections. The government's apparent impotence in the face of a surging crime rate, and uncertainty about the direction the constitutional drafters would take on property and labour rights, added to the gloom.
In the Constitutional Committee, too, matters were far from settled. As the political parties scuttled into bilateral discussions and firmly closed the doors on observers, journalists wanted to know what had happened at Arniston if there were still issues subject to such contention.
Behind one of those closed doors, a delegation of 19 people representing eight private sector organisations met with the ANC, National Party and Democratic Party to convey the "widespread concern of business about the property clause". It was a late submission which, although it brought extra pressure to an already fraught atmosphere, was nevertheless accommodated.
"Business fears that investment and growth may be inhibited if property rights are not protected adequately," a spokesman for the South African Chamber of Business told the politicians.
You've got a few days to submit your changes to the clause, the politicians responded. Let us have them by Thursday.
Such concern to accommodate did not go unnoticed by the National Land Committee and the unions. Those who believed the property clause afforded too much protection to the privileged, or who opposed the right of employers to lock out strikers, marched on parliament to pre-sent their petitions to Ramaphosa.
"This [lock-out proposal] is an issue over which there can be no compromise," read one memorandum. "We will not allow minority par-ties to trample on our rights to protect the power of those who wish to exploit and abuse us. If it means taking the constitution to a referendum, so be it," declared the document.
The ANC-aligned Congress of South African Trade Unions (Cosatu) added its voice to the discontent. During the week it met twice with the National Party to discuss the lock-out clause. "The NP must be aware of what an emotive issue the lock-out clause is among workers," said Cosatu's Neil Coleman. "The NP must be aware of the implications of seeming to support employers against workers in the run-up to the local elections."
To the party of Roelf Meyer this was hardly a threat, although in some editorial columns it was seen as muscle-flexing. Rumour also had it that Cosatu had threatened mass action unless the National Party gave up on the lock-out clause.
Untrue, said Meyer, although the rumour and its denial now added a new factor to the equation. And although Cosatu said its national executive would decide on Friday whether to sanction the constitution or protest against it, everyone was playing down the bluster. No one was hysterical but tension was high.
Almost simultaneously a story appeared in the newspapers which, on that Monday and Tuesday and Wednesday in the middle of April, seemed at the very least to be tempting fate. The story merely disclosed that a ceremony to adopt the constitution on May 8 1996 would cost R1.3m. But to DP leader Tony Leon the release of this information was an ANC signal that all was well, that the negotiations were almost over.
You're "railroading the constitution" he challenged the ANC. "The May 8 deadline is not set in stone. There are at least 50 contentious points that still have to be settled."
They're only technicalities, claimed ANC negotiators.
Technicalities they may have been but they included some of the hottest issues of the entire process: property, education, and labour rights. To those on the benches of the National Party, the Democratic Party, the Freedom Front and the Pan Africanist Congress, these were not technicalities. These were ideological and political cornerstones. Yet by midnight on Wednesday April 17 Meyer was as upbeat as he had been at any time throughout the two years of the Constitutional Assembly's work. There were "only 14" outstanding issues to be dealt with in the next 24 hours, he declared. That these issues still numbered among them the "hot clauses" did not appear to be weighing too heavily on him. His party's "chief motivating force" was "reaching consensus", he said, smiling as always.
At this point the term "package approach" entered the negotiating vocabulary. Behind the term were notions of horse-trading and trade-offs between the ANC and the NP; in other words, deals that came as an entity and could not be unravelled by the opposition of less powerful par-ties or interests.
The "package approach" had characterised the last days of the negotiations on the interim constitution at Kempton Park in November 1993. That this process was being revived in the final days of the final round of negotiations was the cause of much consternation to the DP.
"The country", said an angry Dene Smuts,"deserves better than to have the last few big out-standing issues settled between the ANC and the National Party. It's not a contest." She directed her fire at the NP. It had, she said, "dropped" her "from one moment to the next" on points of principle such as the limitations clause (which imposes "reasonable and justifiable" limits on the rights of individuals) and property rights.
What had happened was that during a multi-party meeting the National Party had softened on the limitation clause and the ANC had immediately suggested a bilateral which excluded the Democratic Party.
She and a number of NGOs, such as the Human Rights Committee, wanted a strict limitations clause in terms of which the government would have to prove that it was "necessary" to curtail a citizen's rights.
"A weak limitations clause undermines the essence of the rights themselves," contended Susan Cowen of the Human Rights Committee. "It's hard to understand why government should want to limit rights unnecessarily."
But the ANC-and then the NP-were content with a clause that limited rights when it was considered "justifiable" or "reasonable".
So when, on Thursday April 18, the ANC's Willie Hofmeyr reported back on the latest discussions between his party and the NP it appeared as if the "package approach" meant that final resolutions on the "hot clauses" had merely been delayed to dissipate some of the heat.
"We'll move formal amendments on these clauses next week when the bill is debated by the full Constitutional Assembly," said Hofmeyr. "I don't think at this stage there are political disagreements."
By late Thursday journalists and observers monitoring the debating process were saying that the Constitutional Committee was "up against it" and that it was "make or break". They described its members as "locked in discussions" all day. They said some issues such as cultural rights were "jeopardising the process". They said the Freedom Front was "passionate" about the Afrikaner's cultural rights and that "passionate" meant stubborn, determined, non-negotiable.
By Thursday night some members looked exhausted. Some looked wired up. From beneath his hooded eyes Cyril Ramaphosa gazed out at those gathered in the old House of Assembly chamber. The meeting had been scheduled to begin at 8pm: it was already 20 minutes late.
"Settle down, please," he said. He was flanked by Leon Wessels and Hassen Ebrahim. "This is the night when we traverse the last mile. A night of probably no sleep at all. All the time we have wasted over the past two years catches up with us tonight. Between now and the morning we have to give the drafters a complete constitution for printing over the weekend. Sub-committees have been meeting. Let's hear from them."
And, at hourly intervals throughout the night, they did.
Shortly before midnight Willie Hofmeyr reported that there "seems to be" consensus on the property clause. There might yet be amendments, he cautioned, but these were likely to be on issues of clarity rather than content. "We have arrived at a political agreement," he said. "Every-one needs to know what we are agreeing to."
There was applause. "This is very encouraging news," said Ramaphosa. "Everyone involved deserves the Order of Merit of Good Hope." Nevertheless the DP continued (in the words of Dene Smuts) to "reserve its position" and even the NP's Sheila Camerer referred to "serious shortcomings" in the property clause.
There were eight points in the clause. The first one they were "agreeing to" read: "No one may be deprived of property except in accordance with a law of general application, and no such law may permit arbitrary deprivation of property."
This was the first of what became known as the "historic breakthroughs" where bitter contention had been worn away by unremitting negotiation until it reached weary consensus.
Another followed at 2.20am when the negotiators from the Freedom Front, National Party and African National Congress emerged sombre, serious and solemn from a three-way session on cultural councils, and crossed the lobby towards the Old Assembly Chambers. There were those who looked at the sober faces and feared the worst.
But what they read in the set of the mouths, the averted eyes, was not grim dissension, it was the enormity of agreement. An enormity that produced tears, shivers and goosebumps when Dr Corn& Mulder (FF) announced that there was political agreement on the inclusion in the constitution of a Commission for the Promotion and Protection of Cultural Rights.
"It was a brave move for the ANC," said Freedom Front leader General Constand Viljoen. "The big task is to arrive at implementation but the ice is broken."
"It proves South Africa is a country with a big heart," said Ken Andrew (DP).
"Everyone claims victory," said Roelf Meyer.
"This is a moment of special historical significance," said Ramaphosa. "There hasn't been a single issue that has united us like this has done. It shows that we are a great nation able to deal with sensitive problems and find solutions. I was privileged to chair the meeting between the parties. When we struck agreement, everyone was over-come with emotion. When I took a close look, I could see traces of tears in their eyes. I believe weare now irrevocably on our way to resolving every outstanding issue in the new constitution."
Not 15 minutes later, a third "historic break-through" brought the rhetoric of a "great nation" back to people's lips. Dr Blade Nzimande (ANC) stood up and began to read the preamble. The chamber was silent, unnaturally silent, considering all the people sitting there. His voice not faltering, each word clear, separate and measured, Blade Nzimande read out:
We, the people of South Africa
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land; and
Believe that South Africa belongs to all who live in it, united in our diversity ...
After Nzimande had spoken, Ramaphosa leant back in his chair. "There is a preamble," he said.
But his observation did not break the mood. The impact of the preamble still lay on the politicians. Into the continuing quiet Nzimande said almost tentatively, "We wanted to keep it simple so that even kids could learn it by heart." Only then did people start returning, drifting back from whatever far country their thoughts and emotions had visited. Only then did they register Ramaphosa's words: "There is a preamble."
The "we" who had helped Nzimande "keep it simple" were Dr Boy Geldenhuys (NP) and ANC researcher Kate Savage. They had spent most of the night drafting and redrafting a part of the constitution that, over the months, had occasioned as much debate as the right to life or property rights. "What we have here," Dr Blade Nzimande told the Constitutional Committee, "is a common understanding." Nevertheless it was not to be the last word on the issue. In the days to come it would be added to, and bring Christians out in protest at what they saw as the exclusion of God from the affairs of the state.
But that was still to come. At 3.20am on Fri-day, April 19 1996, the committee had no more than two hours left. It would be almost six, with the smell of the docks heavy in the foggy streets before they would leave the green leather benches of the old House of Assembly. The same benches where apartheid South Africa had once been written into law.
With this meeting of the Constitutional Committee now finally over, the technical refinement team faced 48 virtually sleepless hours in the preparation of the Draft Constitution of the Republic of South Africa Bill.
"I suppose you could say we were getting used to it by then," a laconic Phil Knight recalled later. "We weren't getting a lot of sleep, but then nobody was. For the last two or three weeks we were getting by on four or five hours' sleep a night. We were living on adrenalin."
On Sunday April 21 1996 when the bill was put on to the Constitutional Assembly's giant photostat machines for printing, Knight came to work at 9am. He didn't go home until eight the following morning and was back in the afternoon of that same Monday to work on the errata sheet.
People take drugs to meet this sort of schedule. "No, I wasn't taking drugs," he laughed. "I did on one occasion and felt awful. I was eating a lot of takeaway chicken though."
So it was that the takeaways helped him accomplish what amphetamines tended to hinder. On the morning of Monday April 22 1996, the bill was placed before the Constitutional Assembly.
By then Cosatu had announced a campaign of mass action to protest the labour provisions "for-gotten" in the draft constitution. It would start on Friday April 26 and lead to a 24-hour general strike the following Tuesday. The word "forgot-ten" was a deliberate sarcasm. What was meant was the inclusion of the lock-out clause. Predictably the ANC lent its support; predictably, the opposition parties did not.
"Irresponsible, silly and unacceptable," said Roelf Meyer, commenting on the proposed strike.
"An outrageous example of irresponsibility," said the DP's James Selfe.
"Absurd. Nothing has prevented Cosatu from making submissions to the Constitutional Assembly," came an ironic and unattributed statement from the IFP.
"The massive investment we have been hoping for has not yet occurred," said Sacob's Gerrie Bezuidenhout. "The prospect of a worsening strike situation must be a factor."
Cosatu's secretary-general Sam Shilowa responded: "The strike will be called off if our demands are met." In other words: drop the lock-out clause.
That week there was a sense that the politicians were stoking the fire. More heat meant more volatility, which meant more drama. Rhetoric was feeding emotion in a bid to raise stakes that seemed already to be high enough. On one hand the constitution was being held out as a tribute to the martyrs of apartheid; on the other hand, it was being shouted down as a shabby document.
So Cyril Ramaphosa spoke of dedicating the constitution to those who, over the centuries, had died for liberation. He wanted to have their names inscribed on a constitution scroll which would be placed in a museum. Rephrasing the theme, Deputy President Thabo Mbeki said the constitution meant "the immense sacrifices of so many people for freedom were not in vain."
From elsewhere came a chorus of dissent: there would be conflict unless the language issue was addressed, said Deputy President F W de Klerk. The constitution must provide for collective rights and self-determination, said Constand Viljoen (FF). It has serious flaws, said Patricia de Lille (PAC). Without acknowledging God Almighty it had no future, warned Kenneth Meshoe of the ACDP.
For two days the Constitutional Assembly debated the bill. The list of amendments piled up as if the work of the previous week had been of no consequence at all. Nevertheless the first reading of the bill was approved by the Assembly on Wednesday night, April 24.
When the Constitutional Committee met the following day Ramaphosa said it was probably their most important meeting. "We must begin to wind up," he said. But confronting the committee was a document that contained 298 pages of amendments: a document as thick as the constitution itself.
Ramaphosa's injunction alone was enough to make committee members' heads spin. "All of us must apply time and energy until we have finalised everything," he said. "The final draft must go for printing on Monday." These were statements of fact, pronounced without irony or emotion. They turned out to be wishful thinking.
Although most of the amendments were called "technical" and although most of the negotiators kept smiling, at least for the press, there was speculation that the "hot clauses" were deadlocked. "There has been no progress on this issue [the educational clause] in the last six months," said a glum Blade Nzimande.
As if that were not enough, the rand fell a further 17 cents against the dollar to R4.4375-a new low. Inevitably it was attributed to the constitutional wrangling and the pending national strike. There were market factors, too, but they tended to fill up the tail-end paragraphs of financial reports.
In the headlines, the constitution was the big issue.
And here the message was difficult to decipher. On Sunday April 28 1996 Ramaphosa, Meyer, F W de Klerk, delegations from the business sec-tor, labour representatives, and government officials met at President Mandela's Pretoria residence for 10 hours of talks. When they re-emerged they would speak only in generalisations, and of "broad formulations", "agreements in principle", and "formulations which all the parties can live with".
As always Ramaphosa saw no cause for pessimism. No longer "100%" sure of meeting the May 8 deadline, he was now "1 000% sure". Of course, the strike was still on. And from KwaZulu-Natal came yet another reminder that all was not well: Mangosuthu Buthelezi told his supporters at a public meeting that the constitution was a recipe for a "totalitarian autocracy" and "the greatest danger to liberty in the country".
When the Constitutional Committee reconvened in the Old Assembly Chambers on Monday April 29, General Constand Viljoen (FF) was the first to speak. He began with praise for the committee but continued with harsh words for the process.
"Since Arniston the process has started looking increasingly chaotic and is no longer conducive to good constitution-making," he said. "We have endlessly debated some clauses and some words in the clauses but I feel that over the weekend the two big parties took over. We have no objection to bilaterals but we also want feedback. I believe the pressure and intimidation from Cosatu is affecting the process. And the process is no longer one of fundamental principles, it's now degenerated into footnotes of political views."
Colin Eglin supported the tenor of the General's criticism. "Weekend events seem to have overtaken the process," he said. "We walked in, quite frankly, not knowing what was going on."
"Nothing has been finalised," replied Cyril Ramaphosa. Magic words that seemed to allay fears. He then outlined a rigorous programme of sub-committee meetings "until our work is done."
"We have to finish tomorrow," he said. "We had reserved Tuesday, put it into our back pockets, but now we need it." Once again, the promise of "finishing tomorrow" was illusory.
During Monday and Tuesday the much-needed shift from frustration to progress continued to elude the negotiators. Admittedly there were positive signs. For instance a tribute was added to the preamble to honour those who'd built the country; changes were made to aspects of the provincial powers after Colin Eglin warned that it would "fail to pass the constitutional certification test." The language issue was said to be settled. Even so, with the final deadline close, and certain key issues perilously close to deadlock, the process went into what Ramaphosa was now calling "the danger zone".
On Tuesday April 30 Cosatu staged its general strike. At lunchtime unionists rallied outside parliament and a hapless Tony Leon was manhandled and slapped in the face when he tried to address the gathering. At 2pm the Constitutional Commit-tee met briefly and adjourned until 6pm to allow negotiations to continue. At 6pm it met but adjourned once again. When it reconvened the meeting was put off until midnight.
On Wednesday the haggling continued around the clock until 5am on Thursday when Roelf Meyer proposed a 24-hour adjournment "so thatevery effort can be put into resolving the outstanding matters". Eleven o'clock on Friday morning was set for the final debate.
The media commentators were blaming the National Party for the deadlock. They quoted the ANC as saying it could not compromise any further without "betraying the struggle". They reported the NP as claiming it had reached bed-rock; there were, the party was saying, "core values from which we can't deviate."
To the chairperson of the Constitutional Assembly it was a matter for deep regret. "The parties will have to compromise and move closer to one another," said Ramaphosa. "These issues are now being strung out, they need to be tackled. If they're not, we're looking at disaster in the sense that if we don't adopt this constitution we are led to a referendum two years into the transition period when political tensions are rising in the country and in the economy. We don't need this at this stage in our transition. Compromises can be reached if the parties have the political will. If they don't all sorts of things start coming undone-the centre will not hold." Ominous words.
Despite this apparent lapse of optimism, at 5am on Thursday the technical refinement team was told to produce an amended bill. They started work on Thursday afternoon and worked through the night to produce a proof an hour before the Constitutional Committee was due to meet on Friday morning, May 3. The negotiators had a clean draft but little else.
When he opened the committee meeting deputy chairperson Leon Wessels said, "All I have to report is that I have nothing to report."
The closed-door negotiations continued throughout the day and into the night. Periodically, encouraging statements of progress would be fed through to amedia on tenterhooks. It was nothing that hadn't been heard repeatedly over the previous four weeks: on radio news bulletins it sounded more like a mantra for salvation than messages of hope.
On Thursday and Friday CA-sponsored advertisements started appearing in major newspapers giving the countdown to May 8 1996.
One read: "In five days your dignity and equality will be guaranteed. For the last year and a half, South Africans have participated in the writing of a new constitution. There have been many debates about human rights, but we all agreed on two things: everyone should enjoy human dignity and equality. What will this mean for you? And how will the new constitution ensure your rights? On May 8, the new constitution will be adopted, and then submitted to the Constitutional Court for certification. All South Africans will enjoy the protection of one law for one nation. We'll have the foundation for a true democracy."
These adverts appeared each morning. If to outsiders they seemed almost wilful, and calculated to raise the pressure on those negotiators still holding out against final agreement, there were still those in the Constitutional Assembly's media department who closed their eyes, and wondered if the limb they were going out on by publishing the advertisements would hold. On Friday May 3 1996, being out on that limb didn't seem a very safe place.
In the offices of the technical refinement team, however, there was no time to consider the pre-cariousness of the situation. By late Friday night they had completed a second proof including whatever amendments had been finalised that day. On Saturday morning they met with representatives from all the political parties on a rotating basis and for the next 12 hours went through the bill chapter by chapter with each party. At midnight on Sunday the document went for printing. Earlier in the day Thabo Mbeki, Cyril Ramaphosa, F W de Klerk and Roelf Meyer had met to exchange views on the three outstanding issues-property, labour and education-but still nothing had been settled.
There were three days left before the country had a new constitution, as the adverts in the Sun-day newspapers reminded readers. On Monday and Tuesday, May 6-7, the Constitutional Assembly was to meet to debate the bill; on Wednesday it would vote. By now so much heat had been generated by the "hot clauses" that it was feared that other, unrelated issues might spontaneously combust.
The two days of debate in the Constitutional Assembly were acrimonious: more an indication of the political temperature than of consensus-seeking negotiators. In simultaneous bilaterals behind shut doors, though, negotiations were continuing. But in public the ANC started saying that if matters went to a referendum-which it was sure to win-then it would consider returning to its original constitution, and not the negotiated draft. This sort of hardball hadn't been heard before and must have given the NP cause to consider how much they stood to lose.
At a rally in the Western Cape village of Elim on Monday night, F W de Klerk declared: "The National Party is fighting its arms to stumps so that you aren't told your schools must change and education is misused for political gain."
Throughout Tuesday there was no clear indication of whether or how the deadlock would be broken. Except that at 6pm Phil Knight was told to prepare the final amendments on the property, labour and education clauses. However, the debates continued until, at a press conference at lam on Wednesday, it was announced that a "sort of" settlement had been found: a settlement based more on an unhappy suspension of demands by the opposition parties than on real compromises. In one breath it was said this had been done for the sake of progress, and in the next that some issues would be challenged in the Constitutional Court. Nonetheless it appeared that after the voting, the party would be on.
At least that's how it appeared from the auditorium. Inside the political parties emotions were abrasive. There were those in the ANC who had had enough and wanted to go to a referendum. There were several members of the National Party who were equally militant and adamant that they would vote against adoption. Deep divisions in the Freedom Front led to hours of discussion and members were not to re-solve their position until just before dawn. As it happened, what Leon Wessels calls "our common South Africanness" triumphed.
Wednesday morning May 8 1996 in Cape Town recaptured some of the excitement of the first parliamentary session after the general election almost exactly two years before. Outside parliament there were television crews scurrying about, politicians were hurriedly making their way into the Constitutional Assembly, hordes of schoolchildren were arriving in buses. The whole scene had a sense of profound occasion, as was apposite. In the history books, the session of May 8 1996 may well be regarded as more significant than its counterpart on May 9 1994.
In the Assembly the official speeches of praise and reservation began. "I am an African," said Thabo Mbeki, a theme which was picked up by all the party leaders-other than the PAC's amused Clarence Makwetu who thought that in his case self-description was not essential. The speeches held no surprises until General Constand Viljoen said his Freedom Front would abstain. The warmth that had greeted his opening remarks turned to disappointment.
"It is impossible to vote against the constitution because there are so many things we have achieved," he said, "but we need to protect culture and therefore we can't vote for it but have decided to abstain." He did not look a happy man. It looked as if this decision had caused him personal pain. When the voting took place he seemed to be praying.
For the record the voting had to be done twice: perhaps the tension of the moment caused some confusion on the first attempt. At the second count the ANC, the National Party, the Democratic Party, and the PAC voted for the constitution: a total of 421 votes. (The two-thirds requirementmeant 327 votes were needed.)
The Freedom Front abstained: 10 votes. The African Christian Democratic Party voted against: two votes. The Inkatha Freedom Party stuck by its walk-out and resorted to the press to state its position. An advertisement signed by Mangosuthu Buthelezi said the constitution laid the "foundation for autocracy and tyranny" and that only the IFP could "halt the slide towards tyranny".
The ANC broke into spontaneous singing when the vote was counted. The National Party sat stony-faced. For an instant Leon Wessels, the Nationalist MP who had once outraged his party by apologising for apartheid, and who was chairing this historic session, looked as if he too wanted to celebrate. He sat down before his body could betray him but he could not control his face. He couldn't stop his smile.
"It was wonderful," he said afterwards. "I felt relieved. I knew this was the moment to leave politics. Nothing could replace this moment."
To those who had gathered outside parliament to welcome what Cyril Ramaphosa called "the birth certificate of the nation", sentimentality was the ruling passion. They laughed, they cried, they sang with pop singer Jennifer Jones "one dream for all of us to share"-a line from the theme song specially commissioned for the occasion. And then the moment was over.
Later that day the negotiators repaired to the parliamentary club in Newlands for a party which swung into the early hours of the following morning. If lack of sleep had been a problem, the solution to it, on a night like this, could well hold over to the morrow.
SHEILA Camerer has devoted much of her career to the law. She has applied it as a prosecutor, defended clients against it, upheld it as a deputy minister of justice in both the National Party and national unity governments; and has also made it, as a key member of the NP's constitutional negotiating team. Camerer came up through the ranks of the NP, first as a Johannesburg city councillor, then as a provincial councillor for Rosettenville. This "white" constituency sent her to parliament in 1987 and returned her again two years later in the election which brought F W de Klerk to power.
During the life of the last white parliament, Camerer became an increasingly important cog in the NP's negotiating machinery and was also appointed deputy minister of justice. She was returned to parliament as a National Party member after the first democratic election and was appointed to the same position in the Government of National Unity (GNU) in March 1996. She resigned three months later when her party left the GNU.
She has served on various parliamentary committees and NP study groups on justice, foreign affairs, constitutional development, finance, national health and welfare, and is a former director of media liaison of the National Party's federal information service. She has been a member of the NP's federal executive, and vice-chairperson of the NP's Federal Congress, and serves on the parliamentary select committees on foreign affairs, arts, culture, science and technology, justice and the constitution. She is also vice-chairperson of the party in Gauteng, as well as NP chief spokesperson on justice and women's issues.
At Codesa Camerer joined the working group that drafted the constitutional principles that formed the basis for negotiation, and moved on to the multi-party process that succeeded Codesa at the World Trade Centre, where she contributed towards shaping the bill of fundamental human rights.
She took part in the negotiations on the bill of rights, defending her party's position on the property clause until the last hours before the constitution was approved by parliament.-CYRIL MADLALA
DEBATES around human rights tended to dominate the headlines during the negotiations-probably because ordinary citizens could relate directly to issues such as the death penalty and abortion. Small wonder, therefore, that the work of a theme three sub-committee headed by the ANC's Pravin Gordhan, which developed one of the constitution's cornerstones, went almost unnoticed.
Gordhan's team developed the concept of co-operative governance,one of the most remarkable features of the constitution and which defines the parameters and interrelationships of government at national, provincial and local levels. Another of its products was the National Council of Provinces which has replaced the Senate as parliament's upper house.
Acknowledged as one of the shrewdest brains in the ANC's negotiating team, Gordhan, a pharmacist, ran his practice in Durban. At the height of the Emergency in the eighties he was forced underground and later detained by the security police.
As a member of the Natal Indian Congress, he co-ordinated several campaigns, including those against the apartheid government's system of a tricameral parliament for Indians, coloureds and whites in 1983.
Gordhan belonged to the underground structures of the ANC and the South African Communist Party while the organisations were banned. In 1990 he was exposed as an operative in Operation Vula, an ANC plan for takeover should negotiations with the government, then delicately poised, fail. He was charged with treason and possession of arms but was granted indemnity in March 1991.
Gordhan represented the Natal and Transvaal Indian Congresses on the Codesa management committee, and was chairman of its daily management committee until the talks broke down.
He was a member of the management committee of the Transitional Executive Council which oversaw the transition between the signing of the interim constitution in November 1993 and the election of April 1994.
As an MP, Gordhan chairs the parliamentary committee on constitutional affairs and also presides over the committee chairmen's forum.-CYRIL MADLALA