A history of the South African Constitution 1910-1996

Sitting of the CODESA at the World Trade Center, Kempton Park, November 1993. Source: Henner Frankenfeld/PictureNET

The Drafting and Acceptance of the Constitution

On 2 February 1990, the National Party government unbanned political parties, released many political prisoners and detainees, and unbanned many people, including Nelson Mandela.

On 20 and 21 December the first session of CODESA (Convention for a Democratic South Africa) was held. There were 19 political groups at this event. All parties agreed to support the Declaration of Intent, which said that they would begin writing a new Constitution for South Africa.

On 15 May 1992 CODESA 2 met at the World Trade Centre. After three days it was clear that there were many tensions. The ANC and COSATU decided to have a campaign of 'rolling mass action'. The first stayaway was on 16 June. On 17 June people marching in Boipatong were shot and many people were killed. After this the ANC stopped talks.

The Multi-party Negotiating Process

In March 1993 full negotiations began at the World Trade Centre. The parties present decided to use the name MPNP - - instead of CODESA. There were twenty-six parties taking part in the MPNP. The MPNP had to write and adopt an interim Constitution to say how the government would govern after the elections on 27 April 1994. The MPNP drew up the Interim Constitution which was to last for two years. The MPNP also drew up and adopted the 34 Constitutional Principles. These principles would guide the Constitutional Assembly (CA) which had to draw up the final Constitution.

The Constitutional Principles

All the parties at the MPNP agreed on the 34 Constitutional Principles when they were drawing up the interim Constitution. They agreed that the CA had to follow these principles when it was writing the final Constitution. If the final Constitution didn't follow and include all the Constitutional Principles then the Constitutional Court would not be able to certify the Constitution. For example, one of the Constitutional Principles was that the final Constitution had to include a Bill of Rights. If it didn't have a Bill of Rights, then the Constitutional Court would not be able to certify it.

The Constitutional Assembly (CA)

After the elections in 1994 the new Parliament - working as the Constitutional Assembly (CA) - began writing the final Constitution.

After two years, on 8 May 1996, the CA adopted the final Constitution. But this Constitution still had to be certified by the Constitutional Court. This meant that the Constitutional Court had to make sure that the final Constitution followed and included all the 34 Constitutional Principles that the Multi-party Negotiating Process (MPNP) had agreed on.

The Constitutional Court's first hearing

The Constitutional Court had its first hearing about the Constitution in July 1996. In September the judges of the court said the Constitution did not follow all of the 34 Constitutional Principles and it refused to certify the Constitution.

This time the Constitutional Court agreed to certify the Constitution.

The final drafting and acceptance of the Constitution

The South African Constitution was drafted in terms of Chapter 5 of the interim Constitution (Act 200 of 1993). On May 8, 1996, the Constitutional Assembly completed two years of work on a draft of a final constitution, intended to replace the interim constitution of 1993 by the year 1999. The draft embodied many of the provisions contained in the interim constitution, but some of the differences between them were controversial. In the final constitution, the Government of National Unity is replaced by a majoritarian government--an arrangement referred to by its critics as "winner-take-all" in national elections. Instead of requiring political parties to share executive power, the final constitution would enable the majority party to appoint cabinet members and other officials without necessarily consulting the minority parties that would be represented in the National Assembly.

The draft final constitution in 1996 also proposes changes in the country's legislative structure. The National Assembly would continue to be the country's only directly elected house of parliament, but the Senate would be replaced by a National Council of Provinces. Like its predecessor, the new council would consist of legislators chosen to represent each of the country's nine provinces. The new council would include some temporary delegates from each province, however, so some legislators would rotate between the National Council of Provinces and the provincial legislatures from which they were chosen.

Negotiators in the early 1990s had agreed that the 1996 draft constitution would be submitted to the Constitutional Court to ensure that it conformed to agreed-upon constitutional principles, such as the commitment to a multiparty democracy, based on universal franchise without discrimination. In May 1996, however, the Constitutional Court did not immediately approve the draft as received; instead, it referred the document back to the Constitutional Assembly for revision and clarification of specific provisions. Chief among its concerns were the need to clarify references to the powers that would devolve to the provincial legislatures and the rights of organized labor and management in an industrial dispute. The Constitutional Assembly was revising the draft constitution as of mid-1996.

Even before it was approved or implemented, the draft constitution had an immediate impact on the structure of government in 1996. Just one day after the draft had been completed by the Constitutional Assembly, the National Party declared its intention to resign from the Government of National Unity, effective June 30, 1996. In the weeks leading up to the NP's formal departure from the executive branch, NP leaders repeatedly tried to assure voters that the party would play a constructive role in politics as a loyal critic of the ANC-led government. President Mandela, too, accepted the NP departure as a sign of a "maturing democracy." NP legislators continued to serve in the National Assembly and in the Senate. It was signed into law on 10 December 1996.

The objective in this process was to ensure that the final Constitution is legitimate, credible and accepted by all South Africans.

To this extent, the process of drafting the Constitution involved many South Africans in the largest public participation programme ever carried out in South Africa. After nearly two years of intensive consultations, political parties represented in the Constitutional Assembly negotiated the formulations contained in this text, which are an integration of ideas from ordinary citizens, civil society and political parties represented in and outside of the Constitutional Assembly.

This Constitution therefore represents the collective wisdom of the South African people and has been arrived at by general agreement

The Legal System

South Africa's legal system, like the rest of the political system, was radically transformed as the apartheid-based constitutional system was restructured during the early 1990s. Nevertheless, many laws unrelated to apartheid continued to be rooted in the old legal system. Thus, the justice system after 1994 reflected elements of both the apartheid-era system and nondiscriminatory reforms.


References:
• Constitution of the Republic of South Africa 1996 [online] Available at: http://www.acts.co.za/ [accessed on 9 March 2011]
•  South Africa - Drafting a Final Constitution [online] Available at :http://www.country-data.com/ [accessed on 9 March 2011]

Last updated : 11-Apr-2016

This article was produced for South African History Online on 11-Apr-2016

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A history of the South African Constitution 1910-1996
A history of the South African Constitution 1910-1996
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The New Constitution was negotiated between May 1994 and October 1996 in the country's first democratically... more