The Interim South African Constitution 1993

On 13 November 1991, Nelson Mandela announced that the first constitutional talks would take place on 29 and 30 November at the World Trade Centre in Kempton Park, east of Johannesburg, Gauteng Province. On 20 December 1991, the Convention for a Democratic South Africa (CODESA I) started its first plenary meeting in the World Trade Centre in Kempton Park. Working groups were formed to deal with specific issues. The first multi-party meeting was named The Convention for a Democratic South Africa (CODESA I). 

The first plenary meeting of CODESA was chaired by Chief Justice Corbett and Justices Ismail Mohamed and Petrus (Piet) Schabort. The nineteen political parties and organisations that attended the historic meeting were: the National Party (NP), African National Congress (ANC), South African government, South African Communist Party (SACP), Inkatha Freedom Party (IFP), Labour Party, the Inyandza National Movement, the Transvaal and Natal Indian Congress, the Venda government, the Bophuthatswana government, the Transkei government, United People’s Front, Solidarity Party, Democratic Party (DP), National People’s Party, Ciskei government, Dikwankwetla Party, Intando Yesizwe Party and Ximoko Progressive Party.

On 21 December 1991, a Declaration of Intent was signed by all parties except the IFP and the Bophuthatswana Government. Among other issues, the declaration seriously committed all the parties to bring about a united South Africa sharing a common citizenship, to work to heal the division of the past, to try hard to improve the quality of life of the people, to create an environment helpful to peaceful constitutional change by eliminating violence and promoting free political participation, discussion and debate. In addition, A Management Committee, chaired by Pravin Gordhan was created to supervise the CODESA process, assisted by a Daily Management Committee and a Secretariat. The Daily Management Committee’s members were: Zach De Beer (DP), Pravin Gordhan, Peter Hendrickse (Labour Party), Frank Mdladlose (IFP), Selby Rapinga (Inyandza), Roelf Meyer (NP), Zamindlela Titus (Transkei) and Jacob Zuma (ANC). Mac Maharaj and Fanie van der Merwe, the director general of Constitutional Development Services headed the Secretariat. Van der Merwe was later replaced by Niel Barnard. The CODESA Administration was headed by Murphy Morobe who was helped by Dr Theuns Eloff and staff consisting of civil servants from the department of constitutional development and the Consultative Business Movement.

The major outcome of CODESA 1 was the creation of five working groups.  Working Group 1 was responsible for the creation of an environment for free political participation and the role of the international community. It was further divided into three sub-groups.  Sub-group 1 focused on the reconciliation process including political prisoners, exiles and discriminatory laws.  Sub-group 2 was responsible for political intimidation, the National Peace Agreement, crime and the security forces.  Sub-group 3 focused on free political participation.

Working Group 2 was responsible for constitutional principles and the constitution-making body. Working Group 3 focused on interim government. Working Group 4, chaired by Stella Sigcau, was responsible for the future of the homelands. A steering committee and four sub-groups were created. Sub-group 1, headed by Errol Moorcroft, was very much focused on get the views of citizens of the TBVC states; Sub-group 2, which focused on citizenship, was chaired by C.D. Marivate and Geoff Budlender acted as rapporteur. Sub-group 3 was chaired by Charles Simkins and James Mahlangu and was responsible for the administrative, financial and practical implications of reincorporating the TBVC states into South Africa and Bulelani Ngcuka acted as rapporteur. Sub-group 4 focused on the political, legal and constitutional implications. It was chaired by Devagie Govender and G.M. Memela acted as rapporteur. Working Group 5 was given a time frames and a responsibility to implement the decisions taken at CODESA 1.

On 20 January 1992, the Working Groups started their work and met twice a week. Each group had almost eighty people, making a negotiated compromise on the various issues. Only Working Group 3 produced a compromise that was used in the later negotiating processes. It was also the only group that made use of a technical committee of experts which included Fanie van der Merwe, Arthur ChaskalsonHalton Cheadle, Andries Cilliers and Francois Junod. In addition to the Working Groups, a Gender Advisory Committee was established in April 1992 to advise the Management Committee on gender issues. Its members included Sandra Botha, Gill Noero, Janine Quince, Zo Kota-Mthimunye, Fiona Wallace and Mavivi Manzini. 14. While the Working Groups met weekly in the first half of 1992, an all-white referendum held in March gave De Klerk the mandate to continue with negotiations.

On May 1992, CODESA II started. However, the massacre that took place in Boipatong in June 1992 resulted in the ANC withdrawing from the negotiation table and CODESA II ended. During September 1992, protest marches took place in Bisho, an independent homeland in the Eastern Cape and twenty eight ANC protesters were killed by the Ciskei Defence Force. This incident was later called the Bisho massacre. The Bisho massacre prompted urgent participants to CODESA I and II to try and find political settlement. On 26 September 1992, the government and the ANC agreed on a Record of Understanding. On April 1993, the multiparty Negotiating Forum started. The agreement on many issues was reached, and an Interim Constitution for South Africa was initiated on 18 November 1993. A Transitional Executive Council was formed to run the country until democratic elections could be held.

In November 1993, twenty-six political groups gathered at Kempton Park near Johannesburg in Gauteng province to draft a Constitution with the aim of bring an end to apartheid legal order. The agreement was described as a satisfactory agreement to allow for the old and the new to govern together and set up national control over the military. The Interim Constitution or transitional Constitution was mainly intended to provide an "historic bridge" between the past and the future and facilitate the continued governance of South Africa, while an elected Constitutional Assembly drew up a final Constitution. This was because the negotiating parties did not feel it proper to make the final document without public support through the electoral system. As these groups were not formally elected, but reflected the political realities of that time, it was considered not correct to give them power to draft the final Constitution.

Therefore, the Constitution which they drafted in negotiations was called the “Interim” Constitution or Transitional Constitution and it lasted for only six months awaiting the drafting of the final Constitution by a democratically elected Constitutional Assembly. The interim Constitution represented the compromise between National Party which ruled South Africa since 1948 to 1989 and African National Congress (ANC) which was banned from 1960 to 1990. It was agreed that the “Final” Constitution would comply with thirty-four constitutional principles contained in a schedule to the Interim Constitution. The 1993 Interim Constitution created the Constitutional Court. The Interim Constitution was approved in Kempton Park and it was duly endorsed by the last apartheid Parliament and became the Constitution of the Republic of South Africa, Act 200 of 1993. The interim Constitution came into effect on 27 April 1994 to administer South Africa’s first democratic elections. South Africans saw their first one-person-one-vote non-racial election in 1994.

The Interim Constitution was restricted largely to civil and political rights as it contained the Bill of Rights which guarantees the rights protected by international human rights conventions. The Interim Constitution provided that “everyone shall enjoy all universally accepted fundamental rights, freedoms and liberties”.However, the Interim Constitution went further than these traditional rights and liberties by including what were relatively innovative rights for a national Constitution such as the right of access to information; the right to administrative justice; a qualified right to the free pursuit of economic activity; the right to an environment which is not harmful to health or well-being; the right of children to security, basic nutrition, basic health and social services; language and cultural rights; and educational rights. Other rights that were included were labour rights and property rights. Important constitutional institutions such Constitutional Court, the Human Rights Commission, and the Commission on Gender Equality were established in South Africa.

The names of the role players involved in drafting of the 1993 Interim Constitution were, namely; Hassin EbrahimGora EbrahimEla GandhiDouglas GibsonFrene Noshir Ginwala, John GomomoPravin GodhanArchibald Jacob GumedeWilliam HofmeyrHarrington HolomisaRonal KasrilsMohamed Ahmed KathradaBaleka Kgositsile,  Kete Ellen KuzwayoSandy LienbergSyvia Brigett MabandlaMac MaharajThabo MbekiGill MarcusMeyer Roelf(Minister of Constitutional Affairs and of Communication),Winnie Madikizela MandelaJohannes ModiseThandi ModisePeter Ramoshoang MokabaRuth Mompati, dullar OmerNaledi PandorEbrahim PatelMathews PhosaCyril Ramaphosa (head of the ANC negotiation  team), Sam ShilowaAlbertin Sisulu,Zola Skweyiya, Joe SloveDene Smuts, Ben TurokFanie Van Der MerweConstand Viljoen

• The Convention for a Democratic South Africa ”“ CODESA 1 and 2 1991 - 1992
• Dugard, J. (1997).International law and the South African Constitution. European journal of international law.
• Memory of the world registers: Convention for a Democratic South Africa (CODESA). Ref No 2010-42. 

Last updated : 25-Jan-2016

This article was produced for South African History Online on 15-Jan-2014