Chapter 13 - The public participation process
It is therefore important that as we put our vision to the country, we should do so directly, knowing that people out there want to be part of the process and will be responding, because in the end the drafting of the constitution must not be the preserve of the 490 members of this Assembly. It must be a constitution which they feel they own, a constitution that they know and feel belongs to them. We must therefore draft a constitution that will be fully legitimate, a constitution that will represent the aspirations of our people.
M. C. Ramaphosa, chairperson. Constitutional Assembly, 24 January 1995.
The people of South Africa must be involved. They must be consulted in an organised fashion, on specific issues in order for the new law to be sensitive to and shaped by their realities, and for it to address these realities.
Ms B. Mbete-Kgositsile, MP, African National Congress, Constitutional Assembly, 15 August 1994.
Our priority is to ensure that the process is not confined to these walls. We need to ensure that the communities along the Limpopo Valley also have their views heard in this Chamber and in our committee rooms. The final draft must reflect the views of our people in the villages, informal settlements, hostels, factories, towns and cities.
O. C. Chabane, MP, African National Congress, Constitutional Assembly, 24 January 1995.
An important difference between this exercise and the negotiation at the World Trade centre is that all the proceedings of the Constitutional Assembly are open to the public. Submissions have been invited - and two million received! Information on the Constitutional Assembly is available on the Internet. And you have solicited the views of ordinary citizens in hundreds of meetings around the country. Whilst proceedings may at times appear cumbersome, they have given real meaning to the phrase 'participatory democracy'.
Chief Emeka Anyaoku, Commonwealth Secretary-General, address to International Round Table on Democratic Constitutional Development, 17 July 1995.
The stated sentiments of key role-players and influential observers such as these shaped the spirit of the public participation process. As the process manifested itself in the public sphere, in newspapers, on television and radio, and even in casual conversation, these kinds of affirming, cautionary and guiding statements maintained a high level of public interest and political accountability in negotiations. Emeka Anyaoku's words, especially, are a fitting tribute to the Constitutional Assembly's programmes for comprehensive public participation. By all accounts the Assembly's efforts were a resounding success that presented many valuable lessons for government and democracy in South Africa because, even though the elected Constitutional Assembly did have a legitimate mandate in terms of which it was entitled to draft the final constitution, it knew that this was not all it needed.
One of the stated objectives of the Constitutional Assembly was that the process of constitution-making had to be transparent, open, and credible. Moreover, the final constitution required an enduring quality and had to enjoy the support of all South Africans irrespective of ideological differences. Born out of a history of political conflict and mistrust, the credibility of the final constitution was an important aim, and as such it depended on a process of constitution-making through which people could claim ownership of the constitution. It was also necessary to placate the fears and concerns of minorities and yet find favour with the majority. In short, the constitutional foundations of democracy had to be placed beyond question, which made it essential to embark upon a programme of public participation. The South African people not only had to feel a part of the process, but the content of the final constitution itself had to be representative of their views. In addition, the process had to be seen to be transparent and open.
The programme developed was daring and difficult. The odds were stacked against its successful implementation, for there was no precedent for such public participation anywhere in the world. The directorate, whose responsibility it was to establish an administration for the Constitutional Assembly, was only appointed in August 1994, three months after the process of negotiation and consultation should have begun, and it was not until the second quarter of 1995 that the full complement of staff was in place. The time available for the project was short, and budgetary constraints meant that funds were never sumdent.
The challenge was to find ways to enter into effective dialogue and consultation with a population of more than 40 million people. South Africa had a large rural population, most of whom were illiterate and did not have access to print or electronic media. Moreover, South Africa had never had a culture of constitutionalism, or human rights for that matter, which accordingly made it difficult to enter into consultation with communities that did not recognize the importance of a constitution. Thus, without the necessary empowerment, consultation would have been hollow and without meaning.
The timing of the exercise made it even more difficult. The process of drafting the constitution followed closely after South Africa's 'liberation' election. Therefore, the programme of public participation had to compete for public attention with the process of transformation. In particular, the programme had to take place during two local government elections, the Masakhane campaign, the Reconstruction and Development Programme (RDP), and various other government programmes. It was also very difficult to make clear in the minds of ordinary members of the public the difference between this process and the growing demand on government for delivery on basic services and election promises. Besides, constitutional debates are often abstract and not likely to attract the interest or attention of a population expecting to be delivered from the evils of apartheid.
Despite these odds, the public participation programme stands out as a monumental exercise, remaining second in effect and extent only to the April 1994 elections. The overwhelming success of the exercise has made it an international point of reference. By empowering civil society to participate in the constitution-making process, the Constitutional Assembly was able to add a new dimension to the concept of democracy in South Africa; that is, a participatory democracy. This set a tough precedent for government and provided a window to what a participatory democracy could achieve.
The need for a public participation programme was addressed in three ways: community liaison, media liaison, and advertising. This move broke with the convention set in the public service, where departments saw no need for anything more than media liaison for communication with the public. Government saw no need for interaction, dialogue, or consultation with the public it was established to serve, and this allowed for communication in one direction only: from the departments to the public. There was no formal mechanism through which departments of government could be informed of the public's views.
The function of community liaison was to initiate face to face interactive programmes between members of the Constitutional Assembly and the broader public. To ensure effective communication, a Media Department was established, which involved the use of print, radio, and television as well as a national advertising campaign. The primary objectives of the media strategy for the Constitutional Assembly were to inform, educate, stimulate public interest, and create a forum for public participation. An important consideration in implementing the strategy was the optimum use of existing channels of mass communication, effective media liaison, and a national advertising campaign, supplemented by the production of in-house media. A major objective of this strategy was to reach disadvantaged rural communities. Furthermore, it was not sufficient merely to be transparent and, accordingly, the strategy was to actively disseminate information and carry out constitutional education.
The media campaign was launched on 15 January 1995 just before work in the Constitutional Assembly began. Its aim was to raise public awareness about the constitution-making process, encourage individuals and interest groups to make submissions, and publicize constitutional public meetings. The primary message was that an important process was unfolding, and that the outcome of this process would affect the lives of all South Africans, including those of future generations. Every South African was provided with a unique opportunity to take part in it. The specific messages carried in the many advertisements were, 'You've made your mark, now have your say', and 'It's your right to decide your constitutional rights'. Advertisements were run on television, radio, in local newspapers, and on outdoor billboards.
The Community Agency for Social Enquiry (CASE) and Roots Marketing were commissioned by the Constitutional Assembly to undertake a national survey. The purpose of the survey was to assess the penetration and impact of this media campaign and to ascertain public attitudes to key constitutional issues. The results revealed that the Constitutional Assembly media campaign reached 65 per cent of all adult South Africans in the three months between 15 January and 19 April 1995 since it started work. However, the survey also revealed that the public were clearly sceptical about the seriousness of the Constitutional Assembly in calling for their involvement, and about the treatment their submissions would receive. The credibility of the process was obviously an issue that needed some attention. Levels of knowledge about the constitution were fairly high, but a sizable proportion of the population still needed education about the nature and function of a constitution. They also needed information about the Constitutional Assembly and the constitution-making process. Nevertheless, these were still encouraging results.
The success of the strategy was also seen in the number of submissions made: nearly 1.7 million were received. The bulk of these were petitions, however, rather than submissions. The petitions dealt with a wide variety of issues, among them animal rights, abortion, pornography, the death penalty, and the seat of Parliament. Of the submissions received, just over 11 000 were substantive. These were often wide-ranging 'wish lists' that arrived at an early stage in the process when political parties were still developing their thinking on many issues. In whatever form, these submissions were a reflection of the views of a large number of people and could hardly be ignored.
Engaging the public
The Constitutional Assembly's media campaign also advertised the constitutional public meetings that were held. These served two functions: the political actors in the Assembly were able to report on their activities, and the public were invited to voice their views on various issues addressed in negotiation. Each submission was then recorded and transcribed for consideration by the political structures established by the Constitutional Assembly.
Most of these meetings were held with rural and disadvantaged communities, largely because people in these areas did not have access to media to follow the process. Furthermore, they were not equipped to contribute on issues without assistance, so it was necessary to ensure that the programme had an educational orientation. To this end, the Constitutional Education Programme was developed.
This project involved participatory workshops, and worked to consult with local structures of civil society to prepare for each public meeting. Between February and August 1995, twenty-six public meetings were organized in all nine provinces, and more than 200 members of the Constitutional Assembly became involved in them. It was calculated that 20 549 people attended workshops, and 717 organizations participated.
For most people, this was the first occasion on which they were able to directly interact with their elected representatives. More importantly, it was the first time in South Africa that public meetings were held involving politicians, who were previously at war with each other, talking jointly to the people. The public meetings held were extremely successful: discussions were lively, ideas original, and the exchange of views appreciated. These meetings also served to highlight the point that constitutions are about basic values affecting society and should be understood by even the least educated. It was a humbling experience to realize that constitutional debates and issues are not only the domain of the intellectual elite, but that they belong to everyone.
Besides the public meetings held, there was a National Sector Public Hearing Programme. This emerged out of a need for Theme Committees to consult and engage those structures of civil society with an interest in a particular debate; for instance, the different rights in the bill of rights, the judiciary, security services, and institutions supporting constitutional democracy and public administration. The preparation for these hearings was handled by a partnership between the Constitutional Assembly and structures of civil society. This was a deliberate part of the strategy, for it avoided the possible accusation of partiality, and also ensured the greatest possible representativeness at the hearings, and an agenda that was acceptable to all."
The majority of hearings took place within the four weeks between 8 May and 4 June 1995. Given the limited time that the Constitutional Assembly had to develop and implement this programme, it was to its credit that 596 organizations were consulted. In addition, Theme Committees hosted many seminars and workshops when expert opinion and further debate was required on particular issues. Many of these workshops included international experts. The programme of public participation during this period proved extremely successful."
Several other communication tools were used with much success. These included a newsletter, television and radio programmes - all bearing the title Constitutional Talk - a telephone talk-line, and an Internet home page.
The television programmes were launched on 24 April and continued till 10 October 1995, in total twenty-five programmes on two SABC channels. The 1996 series of twelve programmes was launched on 18 February and continued until 12 May. The format of the programmes allowed representatives from structures of civil society to engage a multi-party panel of Constitutional Assembly members in debate on important issues. Some of the topics for the programmes included the bill of rights, separation of powers, the national anthem and flag, freedom of expression, traditional authorities, and the death penalty.
Radio was an even more effective delivery mechanism, because it could reach more people in both rural and urban areas. In collaboration with the SABC's Educational Directorate, a weekly constitutional education radio talk show was launched on 1 October 1995, comprising hour-long programmes that were broadcast on eight SABC radio stations in eight languages. Constitutional experts appeared as studio guests. These programmes reached over 10 million South Africans each week.
The Constitutional Assembly's official newsletter, Constitutional Talk, was produced to provide information to members of the public, by presenting material in a detailed and educative manner. It was usually an eight-page publication produced fortnightly and distributed to 160 000 people. Of this number, 100 000 copies were distributed nationally through taxi ranks and another 60 000 sent to subscribers. This newsletter generated a substantial following by those who were keen to follow the process of constitution-making.
To extend the level of education and information, new communication vehicles such as the telephonic Constitutional Talk-line were used. The talk-line enabled people with access to a telephone to get an up-to-date briefing on political discussions. Callers were also able to leave messages requesting information, or to record their comments and submissions. This service was available in English, Afrikaans, Tswana, Xhosa, and Zulu, and over 10 000 people made use of it.
The Constitutional Assembly was one of the first constitutionally established institutions to use the Internet home page. This project was established in conjunction with the University of Cape Town, which assumed responsibility for maintaining it. The home page consisted of a database of all information, including minutes, drafts, opinions, and submissions of the Constitutional Assembly. This too was overwhelmingly successful.
The refined working draft
The Refined Working Draft was a complete set of formulations required by a constitution, produced at the end of the work of the Theme Committees. It was a novel approach to what was effectively a first draft of a bill. It provided alternative options to contentious formulations and supporting notes explaining formulations, and was effectively a progress report on the negotiation of the final constitution. It also clearly reflected the way in which the ideas and submissions made were addressed. The distribution of the Refined Working Draft took place on 22 November 1995, and over five million copies in user-friendly, tabloid form were distributed throughout the country.
The production of the Refined Working Draft required a different level of consultation and public participation. A supporting media campaign was launched with the publication of the Refined Working Draft in November 1995, and ran through the period of public debate to 20 February 1996. In this campaign, the public was invited to make further submissions. However, on this occasion the public was asked to comment specifically on the provisions of the Refined Working Draft, and the submissions that followed were accordingly much more focused.
While it was necessary to consult with all interested parties during the first phase in producing the Refined Working Draft, the second phase required consultations specific to the issues under debate and in contention. To assist in the education process, material about constitutions and the constitution-making process, including posters, copies of the Constitutional Talk newsletter, and a booklet entitled You and Building the New Constitution were produced. The Constitutional Assembly also produced a pamphlet entitled Constitutions, Democracy and a Summary of the Working Draft, in all official languages.
The Constitutional Assembly received 250 000 submissions in the second phase, and again the vast bulk of these were petitions. The petitions dealt with much the same kind of issues as they did in the first phase: the death penalty, sexual orientation, and animal rights in particular. There was much scepticism, however, about the seriousness of the Constitutional Assembly's invitation to the public for written submissions, a scepticism which was also expressed in some of the submissions received. While the Constitutional Assembly was praised for involving the public, some of those who made submissions did wonder whether the politicians would take them seriously.
Once the areas of contention had been identified, negotiations were able to begin. After including the views contained in the submissions, a further edition of the Refined Working Draft was produced. This edition recorded where the submissions came from and the formulations that were affected accordingly, as well as reports by the experts who had processed the submissions. A copy of this draft was sent to each person or party that had made a submission.
Finalizing the text
A seven-week campaign in various media was designed to focus on various socio-economic and political issues. The advertising messages for 1996 were 'Securing your freedom. Securing your rights. The new Constitution' and 'One law for one nation. The new Constitution'. These issues were used to highlight the importance and meaning of the new Constitution to South African people.
It was only after the Easter recess of 1996 that the issues of potential deadlock crystallized. To facilitate agreement, parties held various bilateral and multilateral meetings behind closed doors, which did not augur well with the media or civil society. Moreover, consultations with affected interest groups were limited to those areas of deadlock only, and when these consultations did take place, they were carried out with very little time to plan or prepare. With the benefit of an excellent database the organization of these consultations did not prove too difficult, but this did not mean that there were no problems.
The Constitutional Assembly had prided itself throughout on an excellent relationship with the structures of civil society. However, several structures saw themselves outside the process, particularly when political parties found it necessary to hold closed bilateral or multilateral meetings. The complaint was that even if consultations did take place, the agreements reached between the elected representatives in the Constitutional Assembly still had to be open to comment by these structures. Some sectors that lobbied for particular views that were not taken up in agreements became disenchanted with the process itself. Fortunately, this discontent did not reflect the views of the public or the majority of the structures of civil society.
Owning the constitution
In keeping with the principle of accessibility, the final project carried out by the Constitutional Assembly was the distribution of seven million copies of the Constitution in all eleven official languages. The distribution took place in the week of 17-21 March 1997, which was dubbed 'National Constitution Week'. While intended as a mechanism to distribute the Constitution, National Constitution Week also aimed to create the impetus that would ensure that the Constitution became a reference point for all South Africans as the foundation of their democracy. It also had to create a sense of ownership and engender respect for the new Constitution.
A distribution strategy was designed to ensure that the new Constitution was accessible to all South Africans, particularly the historically disadvantaged sectors of society. Four million copies were distributed to secondary schools in the appropriate language of instruction. Two million copies were available at post offices countrywide enabling members of the public to pick up a copy in any of the official languages, while 500 000 copies were distributed to all members of the South African Police Service and South African National Defence Force as well as all members of the Department of Correctional Services and prisoners, in their language preference. A further 500 000 were distributed through structures of civil society.
Each copy of the Constitution was distributed with an illustrated guide in the same language. This guide highlighted key aspects of the Constitution and made many of the legal concepts contained in the Constitution more accessible. Other publications produced included one million copies of a human rights comic, which was distributed to all schools and adult literacy organizations. A teacher's aid to introduce the Constitution to students was also provided to all secondary schools. In addition, tape aids and Braille versions of the Constitution and guide were available for visually impaired members of the community.
To ensure that the distribution of the Constitution made a lasting impact, a campaign was planned to draw on all sectors of society. This took place during National Constitution Week, beginning in the week of 17 March 1997 and culminating on 21 March 1997, South Africa's national Human Rights Day. The idea was to ensure that elected representatives at the national, provincial, and local levels were seen by their constituencies to be 'delivering' the new Constitution.