COSATU Submission to the Constitutional Assembly

1. Introductory Notes

These submissions to the Constitutional Assembly come at the end of the process of public participation in drawing up our new Constitution. COSATU, with membership approaching the two million mark, represents the largest organised constituency in the country. We also express the concerns of a broader constituency of working people and the poor who want to ensure that the new Constitution is a document which empowers all South Africans, and does not further entrench the privileges of the rich and powerful in our country, at the expense of the majority.

We therefore feel confident that these submissions will be given the weight they deserve. They are the product of extensive discussion, not to mention the result of numerous struggles for human rights and dignity waged by ordinary working people. We commend the Constitutional Assembly for taking the view that the Constitution is not the preserve of a few legal minds and constitutional experts, that the Constitution must be understandable and accessible to ordinary people, and that it must truly reflect the will of the South African people. In this light, we want to believe that these submissions will not be taken lightly.

We are deeply concerned that a number of proposals made by various parties, if accepted, will fundamentally undermine the democratic character of our new Constitution, and even reverse some of the democratic gains made by working people. We respond to some of the areas which are particularly problematic. We also advance concrete proposals which we believe will assist in taking the Constitution forward.

While we recognise that the Constitution needs to be broadly acceptable to the country as a whole, it cannot at the same time be held hostage by minority interests. We therefore want to warn against horse-trading which so dilutes the democratic character of our Constitution, that we end up with a document which becomes an impediment to, rather than a vehicle for, democracy and transformation.

We also want to emphasise that the Constitutional Assembly is a sovereign body which cannot be prescribed to by outside interests. It is the South African people who at the end of the day must determine the final shape of our new Constitution.

Minority parties must not labour under the illusion that they hold some sort of minority veto in the Assembly. If they use their minority vote to consistently block the will of the majority, COSATU will fully support the route of taking the Constitution to a referendum of the South African people.

This submission reiterates a number of key proposals which were raised in our submissions to the Constitutional Assembly on June 3 1995, and which we still believe can be taken on board. We have tried wherever possible to couch our proposals in the form of concrete formulations. While this is the last round of public submissions, we would welcome both the opportunity to present them directly to the Constitutional Assembly, as well as to discuss them with political parties and other stakeholders.

2. Access to Information

Ӣ PROPOSAL: Clause 13, read with Clause 31 should not undermine the ability of workers and communities to access information held by companies, both private and public. We reject the proposal of the Democratic Party to exclude this right from Clause 31.

The current formulation of Clause 31 reads as follows: "

  1. 31(1) Everyone has the right of access to -
    1. (a) any information held by the State; and
    2. (b) any information that is held by another natural or juristic person and that is required for the exercise or protection of any rights.
    3. [(2) This right must be regulated by national legislation.]" The DP has expressed concern over the 'invasion of privacy' encompassed by the application to juristic persons as well. If this reference is removed, it will have significant implications for the right of workers, unions, and communities to access to information from employers. It is imperative that juristic persons are covered under this section.

South Africa is a country where a veil of secrecy has existed, not only in relation to the state, but also in relation to employers. Lack of access to information by workers, consumers and society as a whole, has enormously prejudiced their human rights. This is true whether in relation to the right to a healthy living and working environment, the right to work, and so on.

The right of access to information held by the State or State organs only, and only insofar as such information is required for the exercise or protection of a person's right, is not adequate.

3. Right to Picket

Ӣ PROPOSAL: The Right to Picket should be incorporated into Clause 16 to read: "Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket, or to present petitions".

COSATU believes that the right to picket, which is fundamental to the right of workers to organise themselves, and to assemble and demonstrate in support of their grievances, should be expressly included within the ambit of this section. Its express inclusion will prevent unnecessary litigation as to what exactly the right to assemble peacefully and to demonstrate covers. Given South Africa's history of repression, and particularly repression against the organised labour force, it is essential that the right to picket be recognised as an essential adjunct to the right to assemble and demonstrate. The Reconstruction and Development Programme supports inclusion of the Right to Picket in the constitution (RDP 4.8.3.2).

The alternative would be to include the Right to Picket specifically in the section on Labour Relations as follows: "Trade unions and workers shall have the right the picket at the premises of employers"

4. Trade Union Security agreements

Ӣ PROPOSAL: The right to conclude union security agreements should be contained in the