Twenty years of constitutional freedom

The applique Freedom Quilt by the Bethesda Arts Centre, part of the art collection at the Constitutional Court, depicts Nelson Mandela surrounded by citizens demanding the rights enshrined in South Africa’s Constitution.
(Image: Constitutional Court Art Collection)

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South Africa’s Constitution
Government in South Africa
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Making democracy work for all
Freedom Day: long time coming

Melissa Jane Cook and Mary Alexander

Today marks the 20th anniversary of South Africa’s progressive Interim Constitution, signed into law on 18 November 1993. After centuries of conflict and racial oppression, the country made a leap of faith to establish, for the first time, a fully democratic and non-racial society where every citizen was protected by a comprehensive Bill of Rights regarded as among the most advanced in the world.

The Constitution was a delicately balanced document intended to lay the foundations for a new South Africa as the country rebuilt itself after 40 crippling years of apartheid. It was the result of two years of of fractious negotiation, frequently abandoned, between the governing National Party (NP), the newly unbanned African National Congress (ANC) liberation movement, and a diverse collection of other groups ranging from the far left to far right.

The Interim Constitution, which came into effect in 1994, not only set the stage for South Africa’s first democratic elections, but was – as the document itself explained – “a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex”.

The document was the fundamental law of South Africa from the first non-racial general election on 27 April 1994 until it was superseded by the final Constitution on 4 February 1997.

Unbannings and freedom

The story of the Constitution began on 2 February 1990 when, after months of behind-the-scenes dealing, President FW de Klerk shocked the whites-only Parliament by announcing the unbanning of the ANC, the South African Communist Party (SACP) and other liberation movements. Two weeks later, on 12 February, Nelson Mandela was released from 27 years in prison; many other political prisoners and detainees were soon to follow.

Through a series of accords in 1990 and 1991 the ANC and its allies agreed to suspend the armed struggle and negotiate a peaceful settlement with the white establishment. Talks began with the Convention for a Democratic South Africa (Codesa), in which all parties had a say, in late 1991.

Establishing a new Constitution, and the way it would be done, was a critical component of the negotiations. There were two sides to the debate: the ANC insisted that it should be drawn up by a democratically elected constituent assembly, while the NP feared that the rights of minorities would not be protected in such a process, and proposed that the Constitution be negotiated by consensus between the parties and then put to a referendum.

Codesa eventually decided that a negotiated transitional Constitution would provide for an elected constitutional assembly to draw up a permanent Constitution.

In March 1992 the NP held an all-white referendum to test support for the negotiations process – and received overwhelming backing for reform.

But the Codesa talks broke down, after the second plenary session in May 1992. A major point of dispute was the size of the supermajority required for the assembly to adopt the Constitution: the NP wanted 75%, which would have given it a veto.

Threats to peace

South Africa’s peace process suffered a number of serious shocks, each raising the spectre of civil war. On 17 June 1992 more than 40 men, women and children were massacred in the township of Boipatong. State involvement was suspected. A few months later, in September, soldiers in the apartheid “homeland” of Ciskei fired on protestors in a mass-action campaign against the homeland system, killing many. That crisis was enough to bring negotiators back to the table after the suspension of talks.

On 1 April 1993 the Multiparty Negotiating Forum (MPNF) gathered, with 26 organisations represented – including the Pan Africanist Congress, the Conservative Party and the Afrikaner Volksunie. The meeting was a success and defined the issues to be dealt with at multiparty negotiations. It also set the terms for a Negotiating Council.

Talks were again threatened on 10 April 1993 when Chris Hani, leader of the SACP, was gunned down by right-wing extremists. But the negotiations went on. Later in April 1993, the Negotiating Council set up technical committees to carry on the negotiations. These committees were run by “experts” rather than party representatives, and were limited to six people each. This was a change from the style of negotiations adopted during Codesa.

In June 1993 MPNF decided that 27 April 1994 would be the date of South Africa’s first non-racial elections. The technical committee on constitutional matters was asked to produce a transitional Constitution that would stand as the highest law in the land until the drafting and adoption of a final, democratic Constitution by an elected assembly.

The committee produced draft outline of a transitional Constitution for discussion in late July 1993. In October the the ANC and the NP agreed on a government of national unity, a provision for two deputy presidents, the required percentage to elect a deputy president and the right to cabinet posts.

On 16 November 1993, in a last-minute bilateral meeting between Nelson Mandela and FW De Klerk, agreement was reached on the final issues required to complete the document. The MPNF then ratified the Interim Constitution in the early hours of the morning of 18 November.

The final Constitution

The Interim Constitution was a bridge between the old order and the new, to regulate the country under a government of national unity while a popularly mandated constitutional assembly drafted the final document.

After South Africa successfully held its first democratic elections on 27 April 1994, work began on the final Constitution. After much negotiation, and ratification by the Constitutional Court – now the highest court in the country – Nelson Mandela signed the Constitution into law in Sharpeville, in Vereeniging, on 10 December 1996, international Human Rights Day.

The Constitution came into effect on 4 February 1997. The week of 17 to 21 March 1997 was named national Constitution Week, during which more than 7-million copies of the document were distributed in all 11 of South Africa’s official languages.

Progressive reform

The Bill of Rights in the Constitution has forced major reforms to South Africa’s legal system, prescribed by rulings by the Constitutional Court.

Rulings include the abolition of the death penalty in 1995, prisoners’ right to vote in 1999, and establishing the responsibility of the South African government to its citizens who are arrested in other countries, and the state’s duty to provide effective remedies against domestic violence, both in 2004.

The court has also taken bold steps in protecting the rights of same-sex couples, often long before similarly progressive reforms were made in far wealthier, developed countries. In 1998 it repealed the legal prohibition against sodomy, in 1999 it recognised that gay couples should have the same legal rights as heterosexual couples, and in 2005 it ordered Parliament to draw up legislation allowing same-sex couples to marry.