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Negotiating Beyond Deadlock: From the Constitutional Assembly to the Court

Published online by Cambridge University Press:  28 February 2019

Christina Murray
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Extract

On May 7, 1996 about 50 politicians were gathered together in the Parliament buildings in Cape Town negotiating the final details of South Africa's long-awaited democratic Constitution. There, too, were huddles of advisers, the long-suffering members of the administrative staff of the Constitutional Assembly, and members of the press who, generally absent from the process, had come to record the last moments. Behind the scenes the lay-out team was ready to put the last touches to the document and printers stood ready. Late that night, Cyril Ramaphosa, the Chairperson of the Constitutional Assembly, pleaded with the group in his characteristically ironic fashion: “I know it's late but just 20 minutes more, just 20 minutes – for our Constitution which is for the next 20 years, no, 50 years, 100 years, 200 years. …”

Type
Proceedings
Information
International Journal of Legal Information , Volume 32 , Issue 2 , Summer 2004 , pp. 322 - 350
Copyright
Copyright © 2004 by the International Association of Law Libraries. 

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References

1 By the time he was appointed Chair of the Constitutional Assembly in 1994, Ramaphosa, then just 41, was an experienced negotiator. In the 1980s, initially as legal adviser to the Council of Unions of South Africa, he played a critical role in establishing and then running the National Union of Mineworkers. As head of the ANC's negotiating team, he was centrally involved in the negotiations that led to the 1994 elections. For a brief biography see www.anc.org.za/people/ramaphosa_c.html.Google Scholar

2 See, for descriptions of this process, Friedman, Steven ed. The Long Journey: South Africa's quest for a negotiated settlement. Ravan Press, Johannesburg, 1993; Waldmeir, Patti, Anatomy of a Miracle: The End of Apartheid and the Birth of the New South Africa. WW Norton and Co, New York, 1997; Friedman, Steven and Atkinson, Doreen, eds. South African Review 7: The Small Miracle South Africa's Negotiated Settlement. Ravan Press, Johannesburg, 1994; and Corder, Hugh, “Towards a South African Constitution,” Modern Law Review 57 (1994): 491.Google Scholar

3 The Namibian independence process with which many South Africans were familiar had also used constitutional principles to guide (and constrain) its Constitution-making process. United Nations Security Council Resolution 435, adopted by the Security Council at its 2087th meeting in September 1978, required a Constitutional Assembly to be elected which was to draft a Constitution in accordance with eight principles listed in the resolution. The Constitution was to be adopted by a two-thirds majority of the Namibian Assembly. See for a full discussion Lionel Cliffe, et. al., The Transition to Independence in Namibia. Boulder, Lynne Reinner Publishers, 1994.Google Scholar

4 Constitution of the Republic of South Africa Act 200 of 1993.Google Scholar

5 The Constitutional Principles were included in the Interim Constitution as Schedule 4.Google Scholar

6 Principle XIII.Google Scholar

7 Principle V.Google Scholar

8 Ambiguity in an agreement is, of course, not uncommon. It reoccurs in the Final Constitution in a number of places where agreement was hard to reach. For an interesting discussion of the uses of ambiguity in agreements and the response of mediators see Honeyman, Christopher “In Defense of Ambiguity” Negotiation Journal (1987): 81.Google Scholar

9 Principle XIII (2) added by section 2 of Act 3 of 1994.Google Scholar

10 Ebrahim, Hassen The Soul of a Nation – Constitution-making in South Africa (Cape Town, Oxford University Press, 1998) p. 246 and see “South Africa: Making the Constitution,” The Economist London January 13, 1996.Google Scholar

11 See supra fn. 10, Ebrahim at 246 fn 16. The web site is www.constitution.org.za.Google Scholar

12 Constitutional Talk 22 April – 18 May 1996, No. 3 reporting on the results of an independent survey by the Community Agency for Social Enquiry (CASE).Google Scholar

13 See supra fn. 10 at 358 fn. 19.Google Scholar

14 See supra fn. 10 at 242-9. Ebrahim states that over 1.7 million submissions were made in the first part of the process. Although most of these were petitions, over 11 000 were substantive. The Constitutional Assembly called for submissions once again when over 5 million copies of the “Refined Working Draft” of the Constitution were distributed in November 1995. On this occasion the Assembly received over 250 000 submissions. Again, many of these were in the form of petitions but many were not and, because these submissions were made in response to a draft text, many were more specific than those that had been received in the first part of the process.Google Scholar

15 See supra fn. 10 at 244. “Between February and August 1995, twenty six public meetings were organised … and more than 200 members of the Constitutional Assembly became involved in them. It was calculated that 20 549 people attended workshops and 717 organisations participated.”Google Scholar

16 See the Constitutional Assembly data base at http://www.constitution.org.za.Google Scholar

17 Submission dated May 16, 1995; Constitutional Assembly database at http://www.constitution.org.za.Google Scholar

18 See Constitutional Assembly data base at http://www.constitution.org.za. See also, Green, Pippa “Moments that made the Constitution,” Mail and Guardian December 13, 1996 (http://web.sn.apc.org/wmail/issues/961213/NEWS62.html).Google Scholar

19 Criticism was registered in a number of articles in the press but see also Gloppen, Siri South Africa: The Battle over the Constitution. Dartmouth, Aldershot, 1997, 259 ff.Google Scholar

20 The six theme committees were established to divide up the work of the Assembly and thus make it more manageable. They intended together to cover all the issues that the Assembly had to deal with. The “themes” were the character of the democratic state, the structure of government, the relationship between the levels of government, fundamental rights, the judiciary and legal systems, and specialized structures of government (including the security services and the land commission). Only the theme committee concerned with fundamental rights remained active throughout the Constitutional Assembly process.Google Scholar

21 See also supra fn. 10 at 254. Hassen Ebrahim's comment on tea breaks during the 1992 negotiations leading to the Record of Understanding.Google Scholar

22 See the minutes of the 38th meeting of the Constitutional Committee, Thursday 18 and Friday 19 April and “Gehieme gesprek lei tot deurbraak,” Die Beeld April 20, 1996, which refers to the three weeks of negotiation which preceded this decision.Google Scholar

23 The core membership of the “Technical Refinement Team” was Gerrit Grove, Phil Knight, Christina Murray and Johan van der Westhuizen. It was chaired by the deputy chair of the Constitutional Assembly's administration, Louisa Zondo. Hassen Ebrahim, the executive director of the Assembly, participated in many of its meetings and a number of other people participated at various times.Google Scholar

24 Section 47(1).Google Scholar

25 The “refined” text given here is not that in the Final Constitution. The approach to the dissolution of Parliament and votes of no confidence changed later in the process and the provisions, now sections 50 and 102 read as follows:Google Scholar

50. (1) The President must dissolve the National Assembly if -Google Scholar

(a) the Assembly has adopted a resolution to dissolve, supported by a majority of its members; andGoogle Scholar

(b) three years have passed since the Assembly was elected.Google Scholar

(2) The Acting-President must dissolve the National Assembly if -Google Scholar

(a) there is a vacancy in the office of President; andGoogle Scholar

(b) the Assembly fails to elect a new President within 30 days of the vacancy occurring.Google Scholar

102. (1) If the National Assembly, by a vote supported by the majority of its members, passes a motion of no-confidence in the Cabinet excluding the President, the President must reconstitute the Cabinet.Google Scholar

(2) If the National Assembly, by a vote supported by the majority of its members, passes a motion of no-confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.Google Scholar

26 Section 9 is the equality provision. It states:Google Scholar

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.Google Scholar

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.Google Scholar

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.Google Scholar

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.Google Scholar

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.Google Scholar

Section 12 deals with Freedom and security of the person:Google Scholar

12. (1) Everyone has the right to freedom and security of the person, which includes the right -Google Scholar

(a) not to be deprived of freedom arbitrarily or without just cause;Google Scholar

(b) not to be detained without trial;Google Scholar

(c) to be free from all forms of violence from both public and private sources;Google Scholar

(d) not to be tortured in any way; andGoogle Scholar

(e) not to be treated or punished in a cruel, inhuman or degrading way.Google Scholar

(2) Everyone has the right to bodily and psychological integrity, which includes the right -Google Scholar

(a) to make decisions concerning reproduction;Google Scholar

(b) to security in and control over their body; andGoogle Scholar

(c) not to be subjected to medical or scientific experiments without their informed consent.Google Scholar

27 Section 47(3).Google Scholar

28 See, for example, Republic of South Africa Constitution Act 110 of 1983 section 41(e) and Republic of South Africa Constitution Act 1993 section 42(e).Google Scholar

29 See (Draft) Minutes of the Thirty Second Meeting of the Constitutional Committee (9 and 10 November 1995) para 5.4.1(ii); http://www.constitution.org.za/cghbin/vdkw_cgi/xb4f1f8a-6.Google Scholar

30 Interim Constitution sections 72 and 73.Google Scholar

31 There was, however, a point in the process when a colleague of mine on the Panel said that he thought we had created a deadlock. One of the more tricky provisions to draft was that relating to amnesty for past actions by both the apartheid government and liberation movements. We suggested that an early version of the provision which reflected an agreement that had not been easily achieved was problematic, thus opening up the entire debate again. In fact, the provision finally settled on and adopted in the May 1996 version of the Constitution was rejected by the Constitutional Court. The matter is now dealt with in Schedule 6 item 22 of the Constitution.Google Scholar

32 Interim Constitution section 73(6).Google Scholar

33 See, for a contrary view, Gloppen, Siri South Africa: The Battle over the Constitution p. 209.Google Scholar

34 As it was, almost country-wide local government elections which were held in November 1995 had absorbed the attention of politicians and hampered the programme of the Constitutional Assembly.Google Scholar

35 The two members of the African Christian Democratic party voted against the new Constitution because it failed to subject all government and law to the law of God. The Freedom Front abstained. In addition, the Inkatha Freedom Party remained outside the process and did not vote.Google Scholar

36 The Democratic Party stated in its speech in Parliament on adoption day that although it would vote for the Constitution it intended to contest certain elements before the Constitutional Court (http://www.constitution.org.za/const3.htm).Google Scholar

37 Since black trade unions had been legalised in 1979.Google Scholar

38 “COSATU strikes a blow,” Mail and Guardian April 26, 1996 http://web.sn.apc.org/wmail/issues/960426/BUS44.html. See also, “COSATU to go higher over right to strike,” The Independent Online May 12, 1996.Google Scholar

39 See Ebrahim, , The Soul of a Nation pp. 205–11. See also Constitutional Assembly Minutes of the Forty Second Meeting of the Constitutional Committee May 1/ May 2, 1996; http://www.constitution.org.za, “High drama in constitutional danger zone,” Mail and Guardian May 1, 1996; http://web.sn.apc.org/wmail/issues/960501/NEWS58.html and “South Africa's race to find a permanent constitution,” The Economist May 4, 1996.Google Scholar

40 Minutes of Constitutional Committee Meeting of Tuesday 7 May 1996.Google Scholar

41 For a description of this meeting see Ebrahim, , Soul of a Nation p. 216. The provision, section 241 of the draft Constitution, was headed “Labour Relations Act, 1995.” It stated:Google Scholar

(1) A provision of the Labour Relations Act, 1995 (Act No. 66 of 1995) remains valid, despite the provisions of the Constitution, until the provision is amended or repealed.Google Scholar

(2) A Bill to amend or repeal a provision of the Labour Relations Act, 1995 may be introduced in Parliament only after consultation with national federations of trade unions, and employer organisations.Google Scholar

(3) The consultation referred to in subsection (2), including the identification of the federations to be consulted, must be in accordance with an Act of Parliament.Google Scholar

42 Of course, it is too simplistic to assume that the ability of parties to shift matters to the Court was the only reason for various compromises in the Constitution. From the governing ANC's point of view at least, the fact that constitutional amendment provisions and the ANC's large share of the vote make amendment relatively easy at present may have meant that compromises were not necessarily forever. The National Party, on the other hand, had clearly won in the 1993 round – the Constitutional Principles encapsulated many of its most important positions.Google Scholar

43 In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC).Google Scholar

44 A side effect of the Constitutional Court's role in the certification process was that the Court gained credibility in the white legal community. When the Court was first established, the overall attitude of the white press and white lawyers seemed to be that it was biased towards the ANC. People believed that it would simply rubber-stamp ANC decisions. The willingness of the Court to take the Constitutional Principles seriously pointed in the opposite direction. While the Court (like all Constitutional courts) has not been free from allegations of being executive-minded, the certification judgment reassured many people.Google Scholar

45 The aspect of the Court's decision that caused most resentment was that on local government. The Constitutional Principles described the way in which the new Constitution should deal with local government in some detail. There was little doubt that the first draft of the Constitution had relied on a liberal interpretation of this requirement and so the Court's decision that Constitution did not comply with the Principles was not totally unexpected. But, the Assembly was not really ready to provide the detail in the Constitution that the Court said it needed. Policy concerning the future of local government was unsettled, and the government was in the middle of a long and thorough process of consultation. The difficulties that had been encountered in the drafting the local government provisions in the first round were not so much related to political disagreement between parties as to a lack of decision on what was desirable. The first draft had accordingly tried to leave leeway for future developments. The second draft had to be more concrete and, because the Assembly did not want to risk another non-certification, it needed to provide a great deal of detail.Google Scholar

46 Certification of the Amended Text of the Constitution of the Republic of South Africa 1996 CCT 37/96 (4 December 1996).Google Scholar

47 See supra fn. 10, pp. 249–50. You and the Constitution was written by Greg Moran and produced by the Constitutional Assembly in 1996.Google Scholar