Constitution history

The birth of South Africa

The Anglo-Boer War, which began in 1899, resulted in the unification of four independent territories into the Union of South Africa. During this war, many African people associated themselves with the British in the hope of improving their lot.

According to Andre Odendaal, a prominent historian at the University of the Western Cape, 'in stating the reasons for their surrender in the discussions that preceded the Treaty of Vereeniging in May 1902, the Afrikaner leaders gave as a third reason the fact that "the Kaffir Tribes" inside and outside the Republics had almost all been armed and were fighting against them. ... A fortnight before the Republican surrender, General Botha had declared, "The Kaffir question is becoming daily more serious"' (Odendaal, 1984:36).

The Afrikaners were mistaken, however, for at least 37 472 African people were incarcerated alongside Afrikaners in British concentration camps. The British seemed to have much in common with the Afrikaners: in the Treaty of Vereeniging, clause 8 simply stated, 'The question of granting the Franchise to natives will not be decided until after the introduction of [Afrikaner] self-government'. The repeated pleas by African leaders to the British not to compromise the few pitiful rights they had in the Cape were ignored.

On 12 October 1908, exactly nine years after the outbreak of the Anglo-Boer War in 1899, a National Convention of white representatives from the four colonies assembled in Durban. Whites, who were until then at war with each other, united to form a government that excluded the African majority. Two major debates were to dominate the deliberations of these constitution makers: the 'Native question', and the choice between a federal and a unitary dispensation.

The latter debate cut across the racial divide. For the Afrikaner-ruled republics, a federation would mean that they could maintain their independence, and would not have to succumb to the liberalism of the Cape. The question was also vociferously debated in African newspapers (Izwi labantu, 1907 & Odendaal, 1984:95) and within African organizations. At the first meeting of the South African Native Congress held in August 1907, the members resolved:

That this Conference of the coloured people and natives of the Cape Colony assembly at Queenstown is of the opinion that in the event of the adoption of any form of closer union of the South African colonies:

(a) Federation is preferable to unification.

(b) That form of federation should be adopted in which the Federal Parliament exercises such powers only as are specifically given to it in the federal constitution.

(c) The Cape Franchise should be the basis of federal franchise.

(d) The basis of representation of the Federal Parliament should be the voters' list.

(e) The present so-called native territories (Swaziland, Basutoland and British Bechuanaland) should be regarded as outside Federal territory and under the protection of the Imperial government represented by the High Commissioner for such native territories, unless or until provision shall be made for the representation of such territories in the Federal Parliament by members elected on the same basis as in colonies forming the federation. (Odendaal, 1984:100)

While African people were not represented in the negotiation of the constitution, they were not prevented from petitioning the convention drafting it. The fear of losing what rights they did hold agitated many African people and boosted support for the few organizations that represented their interests. Upon the convergence of such interests, African organizations consulted with each other to find ways of influencing the convention. This, in part, laid the basis for a single national organization. In its submission to the convention, the Natal Native Congress declared:

We Natives of Natal, though loyal subjects of the Crown and sharing the burden of taxation, are labouring under serious disabilities by being excluded from free access to the Franchise, and having no efficient means of making our wants known to Parliament and no sav in matters regarding our most vital interests such as taxation and other things. We humbly beg, with regard to our future government, for some degree of representation in the Legislature. This would go far to remove all causes of complaint and make the Natives a more contented and devoted people under His Majesty's gracious rule. . . . Any scheme for the Closer Union of the Colonies under the British Crown should include a provision that representation should be accorded fairly to all sections of the community without distinction of colour, and that in Natal, as a precedent to any union with the other Colonies of South Africa, the native population should first be placed in the fair position Natives hold in the Cape Colony. (Odendaal, 1984:142)

The report of the National Convention, the draft South Africa Act, was released on 9 February 1909. Anticipating the negative approach of the constitution makers, the Orange River Colony Native Congress prepared for the first joint convention of Africans from the whole of South Africa, with the aim of formulating and publicizing its views on the union.

The draft South Africa Act was endorsed by the four colonial Parliaments and referred back to the National Convention at the beginning of May that year. However, not all parliamentarians supported it. In a debate in the Cape Parliament, W. P. Schreiner, who was also a supporter of equal rights, made an impassioned plea for non-racialism under the slogan, 'Union with honour':

The rights of the coloured people should not be bartered away from any benefit which the Europeans should get. 'Union with honour before all things. There was something pathetic in it that they should take the rights of others away, and make them a matter of bargaining, and say, 'If you do not give them up there will be no Union.....' He would stand out of Union rather than give up his trust in the matter. Federation, Unification etc. were questions of detail; but the question stood out as an absolutely essential one. ... Union without honour ... was the greatest danger any nation could incur. (quoted in Odendaal,1984:191-192)

After approval the draft constitution was submitted to Britain for assent by the Imperial Parliament, and African people saw this as a further opportunity to ensure that their interests were consulted. A delegation of leaders, including Schreiner, went to London and presented a petition to the House of Commons:

The Bill now before the Parliament of Great Britain and Ireland for the purpose of enacting a Constitution to unite the self-governing British Colonies of South Africa into a legislative union under the Crown would for the first time in the history of the legislation of that Parliament by virtue of the phrase 'of European descent' ... create a political discrimination against non-European subjects of His Majesty, and thus introduce for the first time since the establishment of representative institutions in the year 1852 into the Colony of the Cape of Good Hope a colour line in respect of political rights and privileges.

Your Petitioners are deeply disappointed at the extension of political and civil rights and privileges to the coloured people and the natives in the Transvaal and the Orange River Colony.

Your Petitioners feel aggrieved that solely on account of differences in race or colour it is contemplated by the proposed Constitution to deprive the coloured and native inhabitants of the colony of the Cape of Good Hope of their existing political rights and privileges. Your Petitioners fear that the franchise rights of the coloured people and the natives of the Cape Colony are adequately protected under the provisions of the proposed Constitution, but are indeed threatened by the provisions Clause 35.

Your Petitioners apprehend that by the racial discrimination proposed in the aforesaid Bill as regards the qualification members of the Union Parliament, the prejudice already existing in the Transvaal, the Orange River Colony and Natal, will accentuated and increased; that the status of the coloured people and natives will be lower, and that an injustice will be done to those who are the majority of the people in British South Africa, who have in the past shown their unswerving loyalty to Crown, their attachment to British institutions, their submission to the laws of the land, and their capacity for exercising full and political rights. (Schreiner papers: Appendix, & Odendaal,1984:224)

While the principle of the union was supported, the petitioners argued that 'the only practical and efficient means whereby fair an administration and legislation can be attained, peace, harmony and contentment secured, is by granting equal political rights to qualified men irrespective of race, colour, or creed'. Despite these protestations and petitions, the bill in the British House of Commons was passed on 19 August 1909.

It was however only on 31 May 1910, eight years after the Treaty ofVereeniging, that the Union of South Africa was inaugurated The constitution provided for an all-powerful government consisting only of white men, even removing the minimal voting rights which black people had previously held.

The new dispensation was seminal in the development of South Africa's constitutional history. Quite aside from being the first constitution, it gave rise to two parallel streams of constitutional thought would dominate the country's political and social history. One stream of thought developed within the framework of the established status quo, while the other was shaped by the struggle of the majority for a system free of discrimination.

This constitution allowed the government to quickly introduce a series of legislative measures, including the infamous 1913 Land Act, effectively to dispossess and disenfranchise African people. The response of the African people was to unite under a single body that would pursue their interests. One of the pioneers in this regard was Pixley Ka Isaka Seme, a lawyer trained in Britain, who immediately set about the establishment of a 'Native Union'. He called for a congress that would get 'all the dark races of this subcontinent to come together, once or twice a year, in order to review the past and reject therein all those things which have retarded our progress'. He made a significant appeal for the unity of the African people: 'The demon of racialism, the aberrations of the Xhosa-Fingo feud, the animosity that exists between the Zulus and the T[s]ongas, between Basothos and every native, must be buried up and forgotten; it has shed among us sufficient blood. We are one people. These divisions, these jealousies are the cause of all our woes and all our backwardness and ignorance today'. (Rive & Couzens,1991:9-10 & Walshe,1971:33)

The call made by Seme was answered with the formation of the African National Congress (ANC) on 8 January 1912. The birth of the ANC provided the African majority with a united leadership that articulated their plight and led their resistance, but more importantly, it provided African people with a vision of a better life. Almost invariably the struggles they fought were against a constitutional dispensation that provided the legal basis for their oppression. Accordingly, their vision also included a just and democratic constitutional dispensation.

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