South African Constitution 1996
Table of contents:
- The Drafting and Acceptance of the Constitution
- There have been four Constitutions in South Africa
- The birth of South Africa
- The rise of nationalism
- The development of a vision
- The demand for a national convention
- The politics of reform and repression
- The search for constitutional solutions
- The demand for a negotiated settlement
- The CODESA negotiations
The CODESA negotiations
Convention for a Democratic South Africa (CODESA)
After the Convention for a Democratic South Africa's (CODESA) collapse, F. W. De Klerk and Nelson Mandela exchanged memoranda and the NP considerably softened its demands. By August 1992, the ANC had agreed to establish a 'channel bilateral' for maintaining quiet dialogue, nominating Cyril Ramaphosa to hold talks with the NP's Roelf Meyer . They made considerable progress and on 26 September Mandela and De Klerk held a summit to sign the Record of Understanding . They agreed on the principles of an interim government at the national and regional levels empowered by an interim constitution. They also agreed on a formula for an elected assembly that would serve as an interim parliament and draft a constitution based on principles agreed in prior multi-party negotiations. They agreed that to improve efficacy, in future negotiations, the ANC and NP would first reach agreement on a bilateral basis before going to other parties for multilateral negotiation: in sum, others could either agree to be a part of the process or be left behind... read on
On October 25 1991, ninety-two organisations that were united in their opposition to apartheid gathered in Durban to form the Patriotic Front. The Front deliberated over the negotiation process. During the two days of discussion the mechanism and technicalities of transition and a changeover of political leadership were clarified. At the end of the conference, all organisations agreed that an interim government was required to manage the transition. Because the National Party government had a vested interest, it was not deemed suitable to manage and monitor the transfer of power. Clear guidelines were put forward on the responsibilities of the interim government. That is, to take non-partisan control of the security forces, the electoral process, state media, and define areas of budget and finance, to allow international participation of South Africa in global affairs and to elect a constituent assembly based on a one-person-one-vote basis in a united South Africa, which would draft and adopt a democratic constitution.
The first plenary session of the Convention for a Democratic South Africa (CODESA) began on December 21 1991, at the World Trade Centre in Johannesburg. Chief Justice Michael Corbett opened the Convention with Petrus Shabort and Ismail Mohamed as presiding judges. About 228 delegates from nineteen political parties attended and pledged their commitment to negotiations by signing the Declaration of Intent.
Click on the name below to read speeches that were made during the opening session of CODESA.
- Dawie de Villiers, NP
- Chris Hani, SACP
- Helen Suzman
- Nelson Mandela, ANC
Absent from the Convention was the Pan Africanist Congress (PAC) which had withdrawn from negotiations a few days earlier. The PAC believed that negotiations should be held outside the country under the stewardship of a neutral party, such as the United Nations or the Organisation of African Unity . Other more extremist organisations such as the Conservative Party and Azanian People's Organisation (AZAPO) also did not attend. Later in the negotiations, Mangosuthu Buthelezi of the Inkatha Freedom Party (IFP) withdrew in protest at the exclusion of the representatives of the Zulu King Goodwill Zwelithini and the KwaZulu homeland.
After the negotiating parties had agreed and signed the declaration of intent, five working groups were elected to deal with specific issues. These groups were mandated to investigate the establishment of:
- The new constitution
- The setting up of the interim government
- The future of the homelands
- Time period for the implementation of the changes
- The electoral system
A working group made up of two representatives and two advisors from each negotiating party was established and a Management Committee set up of one delegate and one advisor from each of the parties. The Management Committee was assisted by Fanie van der Merwe and Mac Maharaj , who were appointed as the secretariats.
CODESA 1 played a significant role in laying the foundation for multi-racial discussions. It was agreed that the next session would begin in March 1992. Two months before CODESA 2, the five working groups began their discussions and met for two days a week.
Although most politicians had a mandate and support from their constituencies for talks towards democracy, this was not so for the National Party camp. NP parliamentarians felt that CODESA has replaced their role.
The increasing nervousness among NP members forced De Klerk to use the opening of parliament on February 2, 1992 to reassure his colleagues that the NP still held power. He went on to say that no official agreement had been made to change the governance of the country. This did little to stop his critics who accused him of acting without a mandate. He responded by saying he was willing to prove he had the confidence and backing of his supporters and especially Afrikaners through a white referendum .
Although the ANC and the British Anti-Apartheid Movement strongly opposed this move, on March 17, 1992 a whites only referendum was held. F.W. De Klerk urged people to vote 'yes' in support of him and warned that a 'no' vote would mean the continuation of sanctions. The outcome was that the majority of whites voted 'yes'.
CODESA 2 began on the May 15, 1992, two months later than planned due to a number of delays. There were two sticky areas viz. the issue of disbanding the ANC's military wing, MK, and the role of the public broadcaster, the South African Broadcasting Corporation.
Pressure from the NP for the disbanding of MK was viewed with suspicion by the ANC, especially the NP call for the surrender of arms to the security force.
There were also disagreements on the restructuring of the SABC. The ANC felt that a neutral broadcasting body was required to provide fair coverage of the political developments and negotiation process leading up to elections. The SABC could not be trusted to do this with its history of bias and propaganda and links with government. The NP reluctantly agreed to the restructuring of the SABC.
Most significant are the issues that could not be resolved by the working groups during the discussions. These issues were carried over to CODESA 2. However even then the parties failed to reach a consensus on two major issues, that is, the interim government and the constitutions. As a result, the Management Committee declared a deadlock on these issues. CODESA 2 had thus failed.
The Failure of CODESA 2
Although there was consensus for an interim government, parties could not conceptualise what shape and form it should take. The NP wanted a non-racial interim government that would replace CODESA, and consisted of all parties in the cabinet. The ANC proposed an interim government that would last for no more than eighteen months and would have a cabinet representing various parties. The bone of contention was the NP's proposal for a minority veto within such a government. The ANC rejected this proposal. The ANC maintained that minority parties could become part of decision-making through a cabinet decision.
Working Group 2, which was tasked with the formulation of a new constitution, had to propose a constitution-making body and the core principles for a constitution. It was agreed South Africa would have a non-racial, non-sexist and democratic government. However, there was a debate on the percentage required for the constituent assembly to take decisions. The NP proposed that a 70 percent majority be required for the constituent assembly to take decisions and 75 percent for decisions relating to the constitution such as the bill of rights. The ANC proposed its alternate for a 66.7 percent or two-thirds majority on all constitutional matters. After consultation with the Patriotic Front the ANC raised its figures to 70 percent on decisions relating to the constitution and 75 percent for the bill of rights. The NP rejected this proposal and so negotiations deadlocked.
The deadlock and thus the failure of CODESA 2 were received with dismay both inside and outside South Africa. The US pleaded with both the ANC and the NP to resolve their differences and resume talks. Mandela and De Klerk once again made attempts to meet. A few months after CODESA 2, a Multi-Party Negotiation Process (MPNP) began to pursue the issues that CODESA had failed to resolve. The collapse of CODESA had unleashed political uncertainty and violence making it imperative to resume negotiations urgently.
CODESA I - Declaration of Intent
21 December 1991
We, the duly authorised representatives of political parties, political organisations, administrations and the South African Government, coming together at this first meeting of the Convention for a Democratic South Africa (CODESA), mindful of the awesome responsibility that rests on us at this moment in the history of our country, declare our solemn commitment:
- to bring about an undivided South Africa with one nation sharing a common citizenship, patriotism and loyalty, pursuing amidst our diversity, freedom, equality and security for all irrespective of race, colour, sex or creed; a country free from apartheid or any other form of discrimination or domination;
- to work to heal the divisions of the past, to secure the advancement of all, and to establish a free and open society based on democratic values where the dignity, worth and rights of every South African are protected by law;
- to strive to improve the quality of life of our people through policies that will promote economic growth and human development and ensure equal opportunities and social justice for all South Africans;
- to create a climate conducive to peaceful constitutional change by eliminating violence, intimidation and destabilisation and by promoting free political participation, discussion and debate;
- to set in motion the process of drawing up and establishing a constitution that will ensure, inter alia:
- that South Africa will be a united, democratic, non-racial and non-sexist state in which sovereign authority is exercised over the whole of its territory
- that the Constitution will be the supreme law and that it will be guarded over by an independent, non-racial and impartial judiciary;
- that there will be a multi-party democracy with the right to form and join political parties and with regular elections on the basis of universal adult suffrage on a common voters roll; in general the basic electoral system, shall be that of proportional representation;
- that there shall be a separation of powers between the legislature, executive and judiciary with appropriate checks and balances;
- that the diversity of languages, cultures and religions of the people of South Africa shall be acknowledged;
- that all shall enjoy universally accepted human rights, freedoms and civil liberties including freedom of religion, speech and assembly protected by an entrenched and justiciable Bill of Rights and a legal system that guarantees equality of all before the law.
- that the present and future participants shall be entitled to put forward freely to the Convention any proposal consistent with democracy.
- that CODESA will establish a mechanism whose task it will be, in co-operation with administrations and the South African Government, to draft the texts of all legislation required to give effect to the agreements reached in CODESA.
We, the representatives of political parties, political organisations and administrations, further solemnly commit ourselves to be bound by the agreements of CODESA and in good faith to take all such steps as are within our power and authority to realise implementation.
African National Congress
National People's Party
South African Communist Party
Inyanda National Movement
Intando Yesizwe party
United People's Front
Labour Party South Africa
Natal/Transvaal Indian Congress
Ximoko Progressive Party
We, the South African Government, declare ourselves to be bound by agreements we reach together with other participants in CODESA in accordance with the standing rules and hereby commit ourselves to the implementation thereof within our capacity, powers and authority.
Signed by Mr F. W. de Klerk for the South African Government Nkosi Sikelel' iAfrica. Ons vir jou Suid-Afrika. Morena boloka sechaba sa heso. May the Lord bless our country. Mudzimu. Fhatushedza Africa. Hosi katekisa Africa.
- CODESA I - Declaration of Intent, 21 December 1991 [online] Available at: http://sahistory.org.za/ [accessed on 9 March 2011]