Chapter 10 - A framework for negotiating the final constitution

THE GENERAL ELECTION ON 27 APRIL 1994 was the product of negotiated agreements to bring an end to conflict and usher in a new process of negotiation towards the final constitution. When the people of South Africa voted in this election, they voted to provide their newly elected leaders with two separate and distinct mandates: one, to govern a new democratic society, and two, to draft the final constitution.' The election produced 490 political leaders at national level: 400 in the National Assembly and 90 in the senate. In terms of section 68 (1) of the interim constitution, a joint sitting of these bodies made up the Constitutional Assembly.

In drafting the final constitution, the Constitutional Assembly had to work within constitutional and political parameters. This presented a real challenge. A clear understanding of these parameters is funda­mental to understanding the final Constitution, as they shaped the process as well as determined its content. In the main, the objective of the Constitutional Assembly was to produce a constitution that would be both legitimate and enduring. The legitimacy of the constitution depended on the extent to which the exercise of drafting itself was credible. It was also important that the final text be accepted by all, and in order to be fully legitimate, that it be accessible to all.

Several important constitutional requirements had to be considered: the requirement of a two-thirds majority for the adoption of the text, the text's compliance with the thirty-four constitutional principles, and complete adoption within two years.

Constitutional requirements

Strict time-frames were imposed to provide the assurance that the final constitution would be drafted within a reasonable period of time. To deter parties from unreasonably withholding their support for the new constitutional text, there were elaborate deadlock-breaking measures. The use of constitutional principles was a relatively novel approach, since Namibia provided the only precedent where a set of constitutional principles determined the parameters of a drafted constitution. (On 21 November 1989 Namibia's Constituent Assembly had formally adopted UN resolution 435, which incorporated a set of constitutional principles laid down in 1982 by the Western Contact Group. 6 ) In South Africa, however, the Constitutional Court was to test the new constitution against the constitutional principles, unlike Namibia where the principles were merely guidelines.

The interim constitution, therefore, denned itself quite correctly in its closing section as 'a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy, and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex'.

The interim constitution was a historic bridge in two senses. It was a bridge between the past and the present, and also between the present and the future: a future governed in terms of the new constitution. The most important elements in the building of that bridge were the constitutional principles.

Schedule 4 of the interim constitution cited the thirty-four consti­tutional principles. These had arisen from the negotiating process as a compromise between two extremes: the view that CODESA was not a properly mandated forum, and the fear that only the dominant party would draft a constitution of its choice. The principles found a middle road: they were sufficiently precise to guarantee that the constitution-making body did not stray from certain fundamental notions, but not so detailed as to pre-empt the work of that body.

The constitutional principles and their interpretation affected not only the debates in the Constitutional Assembly but also its structure. The six Theme Committees established to facilitate the work of the Constitutional Assembly had terms of reference based on a division of the thirty-four principles. Section 73 (1) of the interim constitution required the Constitutional Assembly to complete its assignment within two years of the first sitting of the National Assembly. At the onset of work in the Constitutional Assembly, some raised concerns that there might not be sufficient time to complete the task. Any extension of the time would have required an amendment to the interim constitution, so the agreement reached was that the assembly should complete its work within the time allocated."

At the start, parties settled a work programme, that envisaged three broad phases." The first phase saw a public participation programme through which the collated views of all role-players were translated into a draft text. The second phase included the publication of the first draft text and a further invitation for public comment. During the third phase the Constitutional Assembly finally negotiated and adopted the constitution.

The process: principles

Fundamental to the process was the principle of inclusivity. The new constitution, it was agreed, had to be the product of an integration of ideas of all major role-players. The Constitutional Assembly defined three categories of role-players. The first category consisted of those political parties represented in the Constitutional Assembly. The second category included political parties outside the Constitutional Assembly together with organized civil society. The third category consisted of individual citizens.

The second principle was accessibility. The Constitutional Assembly invested a great deal of its energy and resources in ensuring that the process was as accessible as possible. This principle suggested that it was not good enough merely to invite submissions, but it was neces­sary to reach out to and solicit these views deliberately. To this end, an elaborate media campaign was devised to reach as many South Africans as possible.

The third principle was transparency. All meetings of the Constitutional Assembly and its structures were open to the public. Such was the nature of the transparency that one journalist described it as being virtually invisible: there were no scoops, since every journalist had equal access to information. The Constitutional Assembly also established a project to ensure that all its materials, from minutes, reports, and all submissions, were accessible through the internet. This was the first example of such an exercise in the world: never before had a project of this nature been undertaken in full view of the international community.

Political structures

The interim constitution obliged the elected representatives to establish two particular structures for the purposes of drafting and adopting a new constitution, namely the Constitutional Assembly and the Independent Panel of Constitutional Experts. In terms of section 68 of the interim constitution, the Constitutional Assembly consisted of both houses of Parliament - the National Assembly and the Senate -totalling 490 members.

The 490 members of the Constitutional Assembly represented seven political parties proportionally in accordance with the results of the 1994 elections.

The Constitutional Committee was the main negotiating and co­ordinating structure reporting directly to the Constitutional Assembly. It consisted of forty-four members, appointed by parties on a proportional basis. The Constitutional Committee met at first on a weekly basis to receive reports from Theme Committees, but met less frequently after the establishment of the subcommittee. It continued to function, however, as the decision-making structure.

A smaller subcommittee of the Constitutional Committee was estab­lished in June 1995 to facilitate negotiations. This subcommittee proved to be extremely effective, and was possibly one of the most' important structures because of its size and ability to meet frequently. The subcommittee was not a decision-making structure and reported directly to the Constitutional Committee, which improved the efficiency of the Constitutional Committee. The subcommittee at anyone rime consisted of about twenty members, and was able to meet more regularly and easily than the Constitutional Committee. It could also meet at the same time as the National Assembly without affecting the quorum of Assembly meetings. A unique feature of the subcommittee was that its membership was dependent on the issue at hand, with the result that the Constitutional Committee could meet less frequently and attend to the reports produced by the subcommittee.

The twelve-member Management Committee met once a week throughout the process. The Management Committee was charged with the day-to-day management of the negotiations and dealt with matters of process rather than substance. One of its responsibilities was to ensure that the Constitutional Assembly worked according to an agreed schedule. Timekeeping, while not as glamorous as the issues of political debate, was an essential ingredient in the Constitutional Assembly's recipe for success. Confronted with the hard reality of a two-year deadline, it was clear that unless structures worked according to plan, the constitution would not be completed by 8 May 1996. It was to the credit of the Management Committee and all players in the process that the Constitutional Assembly met all of its target dates.

To deal effectively with the wide variety of issues in the new constitution, and to ensure the involvement of as many members of the assembly as possible, Theme Committees were established to work on different parts of the constitution. Each Theme Committee consisted of thirty members nominated by political parties in proportion to their representation. However, due to the difference in numbers between the largest and smallest parties, a bias in favour of the smaller parties was agreed. Three chairpersons were elected for each committee by its members to ensure that no single party chaired meetings of the committee. Together with a core group of seven to eight members, the chairpersons were responsible for managing and co-ordinating the work of the Theme Committee. This included developing the agendas of meetings and deciding when meetings were to take place.

The main function of the Theme Committees was to ensure the inclusive nature of the constitution-making process by receiving views and submissions from each of the role-players. In keeping with the policy of the Constitutional Assembly to ensure maximum public participation, members of the public and civil society were invited to send in their submissions. In this regard, it is also important to note that many of these submissions came from ordinary citizens in all official languages. The submissions were translated and processed as reports, which effectively recorded the convergence of ideas and agreements, points of contention, and possible approaches in dealing with the areas of contention. The reports were then debated in the Constitutional Committee. Theme Committees were therefore the Constitutional Assembly's initial interface with the public.

A Technical Committee consisting of specialists and experts in particular fields supported each Theme Committee, and some Theme Committees were assigned additional technical advisers to deal with specialized matters. Theme Committees started work in September 1994 and had a target date of 30 June 1995 for the completion of their assignments.

By 13 February 1995, a mere six weeks after the annual December recess, the first reports were ready. Theme Committees completed most of their work by the end of June as planned, and tabled their final reports, accompanied by draft constitutional texts, in September 1995.

Theme Committee 1 dealt with the character of the democratic state.

It was mandated to discuss:

1. Ӣ the preamble to the constitution; and matters dealing with the establishment of a single sovereign state, common citizenship, democracy, and equality (Constitutional Principle I);
2. Ӣ the supremacy of the constitution, binding on all organs of state (Constitutional Principle IV);
3. Ӣ matters dealing with representative government, regular elections, suffrage, and proportional representation (Constitutional Principle VIII);
4. Ӣ matters dealing with freedom of information and accountable administration (Constitutional Principle IX);
5. Ӣ the name and description of the state and symbols;
6. Ӣ citizenship and franchise; and
7. Ӣ matters dealing with the separation of powers (Constitutional Principle VI).
8. Theme Committee 2 dealt with the structure of government. 25 It was mandated to discuss:
9. Ӣ matters dealing with the separation of powers (Constitutional Principle VI);
10. Ӣ adherence to formal legislative procedures by legislative organs (Constitutional Principle X);
11. Ӣ participation of minority parties in the legislative process in a manner consistent with democracy (Constitutional Principle XIV);
12. Ӣ amendments to the constitution requiring special procedures involving special majorities (Constitutional Principle XV);
13. Ӣ structure of government at national, provincial, and local levels (Constitutional Principle XVI);
14. Ӣ democratic representation at every level of government, without derogating from the role of chieftainship (Constitutional Principle XVII);
15. Ӣ the National Assembly, Senate, and Parliament in general;
16. Ӣ the electoral system;
17. Ӣ matters dealing with the constitutional status and role of traditional leadership (Constitutional Principles XIII);
18. Ӣ traditional leaders; and
19. Ӣ the executive.

Theme Committee 3 dealt with the relationship between levels of government. It was mandated to discuss with regard to Constitutional Principles XVI, XVII, and XXIV:

1. ”¢  the nature and status of the provincial system and local government;
2. ”¢  national and provincial executive and legislative competencies;
3. ”¢  intergovernmental relations;
4. ”¢  local government; and financial and fiscal relations.

Theme Committee 4 dealt with fundamental rights. The mandate and work of the Committee was guided by Constitutional Principle II, which states: 'Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter Three of the Constitution'.

A workshop on human rights and international law was held in April 1995, organized jointly by the Constitutional Assembly, Parliament, and the Raoul Wallenberg Institute from Sweden. Members also attended workshops on gender, pornography, abortion, and freedom of expression organized by various organizations such as the University of the Western Cape Community Law Centre, the Institute party Democracy, and the Freedom of Expression Institute.

Members of Theme Committee 4 also attended a number of national sector public hearings. These involved children's rights, labour, women, religion, traditional authorities, youth, business, land, and socio-economic rights.

Theme Committee 5 dealt with the judiciary and legal systems." With regard to Constitutional Principles VII and XIII, the Committee considered:

Ӣ the structure of the court system;

Ӣ the relationship between the different levels of courts;

Ӣ the composition and appointment of judicial officers;

Ӣ access to courts including lay participation;

Ӣ traditional courts and customary law;

Ӣ legal education and the legal profession;

Ӣ transitional arrangements;

Ӣ correctional services;

Ӣ international law and interpretation; and

Ӣ Attorneys-General.

Theme Committee 6 dealt with specialized structures of government. Given the expanse of its work, the Theme Committee decided to establish four Sub-Theme Committees for the sake of convenience and expediency:

1. ӢSub-Theme Committee 6.1 dealt with public administration (Constitutional Principles XXIX, XXX);
   
   Ӣ Sub-Theme Committee 6.2 dealt with financial institutions and public enterprises (Constitutional Principle XXIX);
   
   ”¢ Sub-Theme Committee 6.3 dealt with transformation and moni­toring (Constitutional Principle XXIX); and
   
   Ӣ Sub-Theme Committee 6.4 dealt with the security services (Constitutional Principle XXXI).

The Theme Committee also resolved for the sake of the smaller parties to allow each party to nominate additional members to serve in the Sub-Theme Committees. The Theme Committee itself held eight meetings.

Sub-Theme Committee 6.1 dealt with public administration and the Electoral Commission. Sub-Theme Committee 6.2 dealt with the Auditor-General, the Reserve Bank, the Financial and Fiscal Commission, and general financial matters. Sub-Theme Committee 6.3 dealt with the Public Protector, Human Rights Commission, Commission for Gender Equality, and land rights. Sub-Theme Committee 6.4 dealt with the security services and worked in the following areas: police, defence, intelligence, and correctional services.

Other structures

The Constitutional Assembly established an Independent Panel of Constitutional Experts in terms of section 72 of the interim constitution. Its primary role was conflict resolution, and it aimed to avoid deadlocks or potential deadlocks between parties. The interim constitution was amended to allow the Constitutional Assembly to refer to the panel on or after 8 May 1996 if the need arose.

The other function of the panel was to advise the Constitutional Assembly through the chairperson on any matter to do with the functions of the Constitutional Assembly. In November 1996 the panel undertook a trip to Europe to attend workshops in Britain and Germany to exchange ideas with international experts on technical issues in the new constitution.

A Commission on Provincial Government was also established, in accordance with section 163 of the interim constitution. Its main task was to bring about the establishment of provincial government in terms of the new arrangements outlined in the constitution. This commission also had the important function of advising the Constitutional Assembly on provisions in the new constitution on boundaries, structures, powers, functions, and transitional measures for the provinces. Members of the commission regularly attended meetings of Constitutional Assembly structures. The final report and recommendations from the commission were received in February 1996 in response to the working draft of the new constitution published in November 1995.

The Volkstaat Council was set up in terms of chapter 11 A of the interim constitution to enable proponents of the idea of a volkstaat to pursue the establishment of a volkstaat constitutionally. The council had the task of gathering information and reporting to the Constitutional Assembly and the Commission on Provincial Government. Its final report was tabled in January 1996.