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Lest We Forget

The Constitution is extraordinary, more so because of the remarkable circumstances under which it was produced, writes Penny Haw.
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Strictly speaking, the Constitution was drafted between May 1994 and May 1996 when political parties negotiated the text as part of the Constitutional Assembly, yet, the process began years earlier.

According to Baleka Mbete, Member of Parliament (MP) and Speaker of the National Assembly and former secretary general of the African National Congress (ANC) Women’s League and ANC negotiator in the Constitutional Assembly, foundations for the Constitution were laid as far back as 1943 when then ANC president, Alfred Xuma wrote the African Claims document about racial equality in South Africa.

The 1955 Freedom Charter  of the ANC and its allies (the Coloured People’s Congress, South African Congress of Democrats and South African Indian Congress) and the ANC’s Constitutional Guidelines developed under the leadership of Oliver Tambo in 1988, also provided an early framework for what would eventually become the Constitution.

“We talk about two years being the time it took to write the Constitution, but we were thinking and discussing it long before we began to work on it as members of the assembly,” says Mbete. “And what came before is important to the final version.”

Around the table

Former member of the ANC national committee, MP, deputy minister as well  as the Minister of Constitutional Development, Valli Moosa was, he says, “involved in the Constitution for the best years of my life – from the unbanning of the ANC in 1990 to the implementation of the Constitution from 1996 until 1999 when I became Minister of Environmental Affairs  and Tourism”.

But, says Moosa, while the negotiations eventually ratified by the Constitution began in 1990 with pre-conditions, these were largely “talks about talks” in turbulent times. “It was around 1992 that we actually started discussing elements of the Constitution and what we did at this point is important,” he says.

“We determined that, while the  quality and content of the Constitution is very important, so is the process of drafting and adopting it. We decided, however wonderful it was, it should not be imposed on the country because it would then not enjoy legitimacy.”

It was thus agreed that the Constitution be produced by only representatives elected democratically by South Africans.

This meant waiting until after the 1994 elections before the Constitutional Assembly – comprising 490 elected representatives of all parties – was constituted (on May 9) to negotiate and draft the document.

“At that point we saw almost all negotiators were men,” says Moosa.  “So, determined to achieve inclusivity, we insisted that each party have one  male and one female representative.”

Achieving inclusivity

A primary objective of the R30-million public participation campaign, which canvassed the opinions of the public,   was to include everyone. “We went out asking people what they would like to see in the Constitution,” says Moosa.

“It was a process of engagement. We wanted all South Africans to feel involved so that when we finally presented them with the Constitution, people would not ask, ‘Where did this come from?’”

Activist and attorney, Willie Hofmeyr was part of the ANC team working on the Bill of Rights (now Chapter 2 of the Constitution). He recalls the process, “I remember sleeping very little. We all slept very little. We had a year and a half to resolve the differences between parties on issues that would determine the future of our whole country.”

Among the key players in the Constitutional Assembly were ANC MP, Cyril Ramaphosa, who was chairman; and National Party (NP) MP, Leon Wessels, who served as deputy chairman. Wessels recalls how the executive of the assembly met every week to discuss their progress. I frequently had to pinch myself to appreciate how profound the changes were that I was privileged to be part of and witness at close range.”

The drafting

Although the assembly examined the systems used elsewhere – Moosa and a delegation visited India, Canada and what was then West Germany in this endeavour – it was determined to design a “uniquely South African Constitution written in plain language”. “One of the things that gives our Constitution legitimacy, sustainability and durability is that is was designed explicitly for South Africa,” says Moosa. “It contains many peculiarities. It’s unprecedented, for example, to have 11 official languages. Legal advisors said it was unworkable. But the Constitution is an expression of the kind of society we want to be. It embraces our ethos and values as a society.”

Language wasn’t the only hotly debated issue. By March 29, 1996 several other deadlocks remained, including the appointment of judges and the Attorney General; the death penalty; lock-out and property clauses; local government; question of proportional representation; and the bar against MPs crossing  the floor.

Negotiation and compromise

A new working procedure was introduced to expedite the process, allowing for three stages in the acceptance of the Constitution. This didn’t immediately resolve the sticking points and delegates and their advisors retreated to Arniston to meet behind closed doors.

Weeks of late night debates ensued with the property clause notably most hotly contested. Finally, incessant negotiation turned to exhausted compromise and at 3.20 am on April 19, the work of the Constitutional Committee was over and the draft of the Constitution was handed to a technical refinement team.

This, says Mbete, was achieved because  of the quality and vision of the country’s leaders and, importantly, because members of the Constitutional Assembly were prepared to listen to one another.

“There is nothing more important for South Africans than the willingness to listen to each other,” she says.

“We need to engage, appreciate things from others’ perspectives and be prepared to compromise.

“That’s how we came to have such an incredible Constitution and it’s what will help us in the future.”

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