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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Return to Sharpeville
Having written the constitution, the negotiators felt more than a little apprehensive about submitting it to the scrutiny of a panel of high-powered judges. Meanwhile, objections were being lodged right, left and centre. It was an edgy time.
The constitution had been written but it still had to pass muster with the Constitutional Court. More specifically, the court would have to measure the constitution against the original 34 constitutional principles negotiated at Kempton Park.
Even before the hangovers which followed the Fernwood fiesta had cleared, therefore, the political parties-including the IFP-and many interest groups were preparing their objections.
At the same time, on May 9, the National Party walked out of the Government of National Unity, preferring to develop its future in opposition and signalling that the days of consensus for the sake of it were over.
This raised a sudden concern: if the court sent the constitution back to the Assembly, would the National Party try to reopen some of the "hot clauses"? Or worse, might the NP and the IFP get together to challenge those parts of the constitution they opposed?
It was an edgy time. Although President Nelson Mandela tried, as a matter of form, to persuade the NP to return to the fold, FW de Klerk and his party remained determined: we are the opposition, they said, which sounded more like a threat than the promise of a working democracy.
That "threat" lingered throughout June while written submissions were made to the Constitutional Court. But it was the commentators rather than the politicians who kept alive for the public the spectre of breakdown. Clearly, as a piece of melodrama, the constitution had not yet exhausted its dramatic possibilities.
As it happened, there were many politicians across the spectrum who did not think the constitution would pass first time round. "Think about it," said Colin Eglin. "We produced a constitution of 241 clauses and we did not have a bunch of high-powered lawyers testing the clauses as we went along to see whether they would conform with the 34 principles. If, as a result of our effort, every single one of those clauses complied with the principles we would be superhuman. I'd be very surprised if we'd hit our jackpot."
Moreover, by the end of June more than 70 interest groups, individuals and political organisations had submitted objections mainly focused on the powers given to the provinces, and on the labour provisions. Abortion, hanging and pornography might all be in the balance. There was even the charge that the constitution did not protect the family.
So when, on Monday July 1 1996, the Constitutional Court began hearing argument on the shortcomings of the new South Africa's "birth certificate" there was every indication that the 10-day hearing would be eventful.
The judges, too, seemed a little ill at ease. They sat pensive in their cream-soda robes, pondering their role in this final act. Judge Albie Sacks thought the country was in danger of being ruled by judges. "My main concern", he said, "is that the court could end up usurping the role of the legislature." Court President Arthur Chaskalson concurred: "Are we not called upon to make political judgment on what the provincial powers should be? My problem is: how do we approach what are fundamentally political questions?"
This dilemma hung over the proceedings throughout-especially given the vociferousness of some of the objectors, the IFP foremost among them. These were clearly political battles. The one over provincial powers took almost three days as first the DP's counsel, then the IFP counsel, criticised the constitution for lessening the entire spectrum of the provinces' powers-legislative, executive, financial and fiscal. With each attack the rub between politics and law became increasingly inflamed. When the hearing ended the judges faced a daunting task.
Almost two months later, on Friday September 6 1996, the court delivered its verdict in the form of a 288-page document. This was prefaced by an intricate and lengthy note which dwelt on the historical context and the uniqueness of the process. It pointed out that "judicial certification of a constitution is unprecedented" and there was a need to explain the "nature of this under-taking". It had originated, of course, in a political decision by the negotiators in 1993 that the Constitutional Court should certify the constitution in terms of 34 politically agreed principles. Principles that in themselves were ambiguous and difficult to interpret.
Against this background the judges returned the constitution to the Constitutional Assembly with the finding that eight sections and much of the chapter on local government were out of line. In brief they felt that the Auditor-General and the Public Protector needed greater independence, that individual companies should have the right to collective bargaining, that the constitution required stronger measures to protect it from amendment, that several provincial powers had been reduced beneath the minimum prescribed by the 34 principles, and that the definition of the Public Service Commission was too vague.
But in the main their findings were very positive. "The basic structure of the constitution is sound and the overwhelming majority of the requirements of the constitutional principles have been satisfied," the judges concluded. "The instances of non-compliance that have been identified should present no significant obstacle in the Constitutional Assembly to formulating a text which complies fully with those requirements."
Far from eliciting cries of despondency, the court's decision was heralded as a triumph for democracy-both by those who had attacked the constitution and by its supporters.
"The court has stuck within the bounds [of the 34 principles] and was not prescriptive," commented Valli Moosa, former deputy minister of Constitutional Development who, on the withdrawal of the NP from the Government of National Unity, had taken over the cabinet port-folio from Roelf Meyer. "It has served to enhance the legitimacy of the constitution."
"What we needed", said ANC negotiator Johnny de Lange, "was a stamp of approval for the final product and personally I can see no better way that this can be achieved."
The question now was how to meet a deadline of three months. Ideally the government wanted the new constitution to come into effect from January 1 1997: but in the meantime, how to get the changes made?
Fortunately, this would depend on the same ingredients that had driven the constitution-making process to this point: the personalities and the political will. And because the parties had already agreed not to go back on the old negotiations, it was therefore simply a matter of getting the job done. As Roelf Meyer put it, "it wouldn't be responsible to open up the whole thing again. I believe we'll concentrate on the issues raised by the Constitutional Court."
This left only the question of time, which, to Cyril Ramaphosa, was scarce. A deadline of Friday October 11 was set, which gave the negotiators four weeks, but nobody was complaining.
The unknown factor late in September was whether the IFP would end its 18-month boycott and return to the Constitutional Assembly. In the end it did ... and it didn't. IFP members sat in on some subcommittee meetings. They held bilateral discussions with the ANC and the National Party. Yet it was difficult to know at any one point whether they were in or out of the negotiations.
According to IFP MP Peter Smith they were "very serious" about what they were doing. "Our return is not motivated by the chance of reopening new issues," he said, "but there are some issues where there is an automatic necessity to go beyond the Constitutional Court judgment, and we need some fluidity."
But fluidity was the last thing on the negotiators' minds in the week leading up to Friday October 4. Particularly those in the ANC. There were some tense people in the ANC. Even the indefatigable Cyril Ramaphosa had taken to frowning again. Deadlines had come and gone but a complicated web of bilateral and multilateral meetings was not producing the necessary results.
"It does not look very encouraging," said Ramaphosa on the morning of October 3. "Actually, it looks quite gloomy. It seems as if we are tying ourselves into knots, as if we are unable to grasp the nettle and find agreement."
Of course his very gloominess helped goad the parties towards agreement and by late afternoon on Monday October 7, Ramaphosa's mood had lightened considerably. He wasn't frowning any more; he was smiling. "The job is done," he announced.
Local government had been more clearly described. Provincial powers had been beefed up. Special voting majorities now protected the Auditor-General and the Public Protector from being fired. Employers' organisations had been given the right to collective bargaining. Special majorities were needed to amend the constitution. The shortcomings in the provisions dealing with the Public Service Commission had been rectified. In addition, public access to National Assembly committees had been improved; the table of rights which could not be curtailed, even under a state of emergency, had been revised; and, in deference to the sensibilities of the IFP, traditional leaders had been granted an ex officio role in local government until April 30 1999.
The job was done but once again it had been done without the IFP. That Monday morning they had withdrawn again, or rather, had not returned. By way of explanation, IFP negotiator Walter Felgate said: "It does not look as if there is any prospect of an all-party agreement on a constitutional text, so there is no point in our continued participation."
Unlike the acrimony that had attended the final hours of the constitutional negotiations in May, there was a quiet sense of a job well done in the days leading to the Constitutional Assembly sitting of Friday October 11. The fanfare had sounded in May so, while this was not an anti-climax, it nevertheless carried a sense of dêja vu, and that things were now over. The mood was one of quiet relief.
After the debate, the outcome of the voting was no surprise. The ANC, the NP, the DP and the PAC voted for the constitution (369 votes). The Freedom Front abstained (eight votes). The ACDP voted against (one vote).
As always the last word went to the chairperson of the Constitutional Assembly: "This constitution", said Ramaphosa, "represents the will of our people and the compromises all parties have had to make. I believe we all rose above our principles. We simply just excelled. We shone. We were simply the best. I am not going to say goodbye because we might be referred back. I hope we are not referred back."
The Assembly rose to its collective feet and gave him an ovation.
The Constitutional Court finally approved the revised constitution on Wednesday December 4. It was signed into law by President Nelson Mandela on December 10 1996-appropriately enough, Human Rights Day-at the symbolic venue of Sharpeville. Opening the signing ceremony, Valli Moosa said: "This is the moment that South Africans for the last 300 years have lived and died for. This is a moment that South Africans for the next 300 years will cherish ..."
It was generally accepted during the negotiations that, for its size, the Democratic Party wielded disproporitionate influence in shaping the new constitution. A significant contributor to that success was Dene Smuts who,when debate turned to the bill of rights, took on the combined weight of the African National Congress and the National Party .
The debate on this section of the constitution was fierce, not least because it revolved around relatively concrete concepts; ordinary members of the public could relate directly to discussions on the death penalty, abortion, education, property, labour relations and such matters. Indeed, tension over whether the new constitution would receive enough support and the text would be adopted within the two-year deadline, arose from disputes over clauses in the bill of rights.
Smuts, a former magazine editor, played a key part in the formulation of this chapter of the constitution although she was under constant fire from the ANC which accused her party of trying to protect whites' apartheid privileges.
Before becoming a member of parliament for Groote Schuur in 1989 Smuts was an award-winning journalist. She had worked for the Afrikaans daily, Die Burger, before being promoted to the editorship of a leading women's magazine, Fair Lady. Later she was managing editor of Leadership before leaving journalism for parliament.
She represented her party as an adviser and delegate at Codesa and took part in the multi-party negotiations at Kempton Park.
Re-elected to parliament in 1994, she became her party's spokesperson on home affairs, women's rights, arts and culture, language and broadcasting, and on human rights.
As a constitutional negotiator she has been included among the new parliament's delegations to the European Parliament, the Commonwealth Parliamentary Association, and the parliaments of Canada and Belgium.-CYRIL MADLALA
REGARDED by insiders as a rising star in the African National Congress, Collins Chabane was a relatively low-profile member of a negotiating team which overflowed with talent. Mild-mannered and slightly built, his contribution to the development of the new constitution was nevertheless immense, particularly on the role of traditional leaders in a democratic order.
Physical appearance is deceptive; not many political adversaries would have suspected that the gentle 36-year-old Chabane had a military background.
A founder member of the Azanian Students' Organisation, he interrupted his academic career at the University of the North to train with the ANC's armed wing, Umkhonto we Sizwe, in Angola in 1980.
He rose through the ranks to become a section commissar before being deployed as a commander of a unit inside South Africa. He survived under-ground for three years before being arrested and jailed on Robben Island.
While in prison he acted as secretary for an ANC underground unit that co-ordinated the organisation's political work, and as unit leader he was responsible for the smuggling and storage of reading material that was not allowed in jail.
When political prisoners were freed in 1990, Chabane went back to the Northern Transvaal where he was elected regional secretary of the ANC. A year later he was elected to the organisation's national executive.
In parliament he serves on the joint standing committee on defence, the joint standing committee on mineral and energy affairs and on the National Assembly's ad hoc committee on intelligence. He was also a member of the management committee of the Constitutional Assembly.-CYRIL MADLALA