Within twenty-four hours of adoption, the executive director of the Constitutional Assembly began receiving calls from the Constitutional Court enquiring how soon the text of the Constitution would be lodged with the Court for its consideration. The Court was intent on dealing with the certification expeditiously. It was also concerned about the enormous caseload it had and wanted to ensure that the process of testing the adopted text was dealt with in the same open manner as the drafting.
The test of compliance with the agreed constitutional principles was an important part of the process of arriving at a final constitutional text. It was as important to the ANC, who had proposed it in the Harare Declaration, as it was to the NP and other minority political parties. These principles offered all parties a guarantee that the final ConstiÂtution would be based on principles with which they could identify. This test before the Constitutional Court allowed the negotiating parties, especially those with minority support, to buy into a process of arriving at a final constitutional dispensation and to make a break with the conflict of the past. To provide further assurance, me Constitutional Court was to be the only and final arbiter as to the compliance of the text with the agreed constitutional principles.
Constitutional democracy at work
The Court was in a rather difficult position. The constitutional principles agreed to were essentially political agreements between parties bringing an end to conflict. To make matters worse, a fair number of the thirty-four principles could be interpreted in various ways. Still, the Court had to use these principles to test the constitutional text; and then too, against the background that the text was adopted by an overwhelming majority.'
To the credit of the Court, the approach adopted in the directions issued by the Judge President assured that the process of certification was open and transparent:
The President of the Court, considering it to be in the national interest to deal with the matter as thoroughly yet expeditiously as possible, determined that both written and oral representations would be received and fixed 1 July 1996 as the date for the commencement of oral argument. On Monday 13 May 1996 he issued detailed directions, including a timetable, for its disposal.
The directions included provision for written argument on behalf of the Constitutional Assembly to be lodged with the Court and invited the political parties represented in the Constitutional Assembly that wished to submit oral argument to notify the Court and to lodge their written grounds of objection. Although there was no legal provision for anyone else to make representations, because of the importance and unique nature of the matter, the directions also invited any other body or person wishing to object to the certification of the text to submit a written objection.
The directions required objectors to specify their grounds of objection and to indicate the Constitutional Principles allegedly contravened by the text. The Court, through the good offices of the Constitutional Assembly, also published notices (in all official languages) inviting objections and explaining the procedure to be followed by prospective objectors. Each written objection was studied and, if it raised an issue germane to the certification exercise which had not yet been raised, detailed written argument was invited.
These procedures met with significant success. Five political parties tabled objections to the certification: the ACDP, the DP, the IFP (which was joined by the KwaZulu/Natal Province), the NP, and the Conservative Party. The report of the Court as contained in its judgÂment is as follows:
Objections were also lodged by or on behalf of a further 84 private parties. The political parties and the Constitutional Assembly as well as of the other bodies or persons were afforded a right of audience. In deciding whom to invite to present oral argument, we were guided by the nature, novelty, cogency and importance of the points raised in the written submissions. Interest groups and individuals propounding a particular contention were permitted to submit argument jointly notwithstanding the absence of a formal link between them. The underlying principle was to hear the widest possible spectrum of potentially relevant views. ...
Hearings commenced on Monday 1 July 1996 and continued until Thursday 11 July 1996. Individual objectors were heard in person; otherwise representation was permitted through persons ordinarily entitled to appear before the Court or through a duly authorised member of the organisation concerned... In the process all relevant issues were fully canvassed in argument.
The Court delivered its judgment on 6 September 1996. The judges found that the text adopted on 8 May 1996 did not comply with the constitutional principles in eight respects. Notwithstanding this, the judgment concluded with two observations: 'The first is to reiterate that the Constitutional Assembly has drafted a constitutional text which complies with the overwhelming majority of the requirements of the Constitutional Principles. The second is that the instances of non-compliance which we have listed ... although singly and collecÂtively important, should present no significant obstacle to the formuÂlation of a text which complies fully with those requirements'.
Amending the text
The judgment did not spark any controversy; instead, it was hailed as a victory for constitutional democracy. None of the shortcomings in the text were regarded as fatal. The judgment did not give rise to a crisis and neither did it negate in any way the fruits of the previous two years of negotiation. Ironically, the return of the text presented the Constitutional Assembly with some unique opportunities, the main one being that it was now possible to make another attempt at bringing the IFP back on board, which was a distinct possibility. One of the more serious flaws in the adopted text was the finding that the powers of the provinces were substantially reduced compared to those in the interim constitution.
The return of the text also allowed the drafters a chance to improve the text. The process of drafting during the last fourteen days before 8 May had been extremely difficult because the text was being continuously amended. A constitutional text, like any other legal draft, is a cohesive document, and changes effected in one part of the text invariably affected another. This is particularly so in the use of partiÂcular words for legal and linguistic consistency. Within forty-eight hours of the judgment two independent legal opinions analysed it and identified the amendments necessary to cure the defects in the constitutional text. The Management Committee met on 12 September to consider the judgment and decide on a way forward.
A representative of the IFP, Peter Smith, who was assisted by Walter Felgate, attended this meeting. Smith insisted that their presence in the meeting did not mean that they had reviewed their decision to boycott the process, and that they were there as no more than observers. Smith explained that the IFP was to review its position at a meeting of their National Council that was to be held on 21 and 22 September. Considering a possible return to the process, the IFP felt it could not afford to ignore developments in the Constitutional Assembly. 8 Because parties believed that this was an opportunity for the IFP to end its boycott, they agreed to the request made by the IFP that negotiations only take place from 25 September.
The first issue that required the attention of the committee was the question of time-frames. Both the Freedom Front and the IFP repeated their previous positions that no deadline be set for obtaining certifiÂcation, for they felt that the exercise was far too important to rush. The general view that prevailed was that it was important to ensure that the Constitution be certified before January 1997. Should this not happen, it would not be possible to establish the National Council of Provinces or implement any other aspects of the Constitution in 1997." There was a sense among members that it was necessary to finalize the Constitution as soon as possible, and by so doing allow members of the assembly to redirect their rime more profitably to the crucial demands of governance and transformation.
The Management Committee also considered whether the Constitutional Assembly should entertain issues for negotiation that fell outside those flaws identified by the Constitutional Court. This was an important question, as the amended text had to be lodged by 7 October if the Court was to consider certification and give its judgment before the end of 1996. ro The Committee concluded that these negoÂtiations should focus solely on those amendments that were necessary to secure certification. The Committee was also required to consider the process of effecting the amendments, which could only be done with a proper mandate from a full sitting of the Constitutional Assembly that was scheduled for 20 September. It was agreed that the Constitutional Committee be convened to negotiate the amendments and table its report with the Assembly for adoption at its earliest possible convenience. In this regard, the Management Committee proposed the formation of two subcommittees, each of which had to be supported with technical assistance. When work began in the subcommittees on 25 Septening of South Africa's new and final Constitution.