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The Constitution   |   The history of the Constitution
 
The adoption of the Constitution in 1996 was a major turning point in this country's history. It has been called the "birth certificate" of a new South Africa - a country that is profoundly different to the one that existed before.

Of course, the Constitution did not arrive suddenly or magically: it is the product of protracted negotiations - and a long and troubled history before that. Many of the ideas it contains are the realisation of years of struggle.

Background:1900 to the 1980s
In 1902 the Treaty of Vereeniging - signed by Boer and British leaders - ends the Anglo-Boer War, which began in 1899. This is followed in 1908 by a national convention that represents the exclusive interests of whites and which negotiates South Africa's first constitution. This, the South Africa Act, is passed by the British House of Commons, despite petitions and protests from the African majority.

The inauguration of the Union of South Africa follows soon afterwards, on 31 May 1910, and marks the disenfranchisement of black people.

Just under two years later, in January 1912, the African National Congress is formed.

In 1928 the South African Communist Party sows the seeds of the concept of black majority rule with the rallying call of a "native republic".

The Atlantic Charter, which Franklin D Roosevelt and Winston Churchill sign in 1941, lays the basis for a bill of rights in South Africa. In 1943 the ANC's first attempt at such a document, African Claims, is modelled on this charter

In 1948 the National Party wins the election (without gaining a majority of votes) and the policy of apartheid is officially born. In the years to 1955 the ANC Youth League and the Congress Movement run a mass defiance campaign.

The day of 26 June 1955 is a crucial one in history: the Congress of the People meets in Kliptown, in Soweto, and adopts the Freedom Charter.

Two years later, Chief Albert Luthuli writes to JG Strijdom, the Prime Minister, pleading for the establishment of a non-racial convention.

The late 1950s and 1960 are marked by anti-pass protests by the ANC and the Pan Africanist Congress, formed after a split with the ANC in 1959.

On 16 December 1960 the Consultative Conference of African Leaders is held in Orlando, Soweto. It calls on Africans to attend a conference to demand a national convention representing all the people of South Africa.

And in March 1961 the conference is held in Pietermaritzburg. It demands a national convention of elected representatives of all adult men and women be called to craft a non-racial democratic constitution, one that can only be written by "the people".

Nelson Mandela, who is underground at the time, pays a surprise visit. A month later he writes to HF Verwoerd, the prime minister, referring to the rising tide of unrest. He says "it was the earnest opinion of conference that this dangerous situation could be averted only by the calling of a sovereign national convention representative of all South Africans, to draw up a new non-racial and democratic constitution".

On 31 May 1961 South Africa is declared a republic. The Rivonia treason trial begins in 1964.

From 1969 to 1972 the South African Students Organisation and the Black Consciousness Movement bring the idea of identity and dignity into the struggle for freedom and equality.

The Soweto uprising is set off on 16 June 1976 by pupils protesting against the imposition of Afrikaans as a medium of teaching.

In the 1980s, while mass eruptions continue in the streets, two levels of negotiations begin: Nelson Mandela initiates discussions with his jailers and the minister of justice, Kobie Coetzee; and in exile, Thabo Mbeki and his team begin talking to the government through intermediaries.

Apartheid unravels: 1989 to 1994
In the middle of 1989 Nelson Mandela, now held in Victor Verster prison near Paarl, meets PW Botha, who is then the state president. Nelson Mandela says it is "in the national interest" for the ANC and the government to meet urgently to negotiate a settlement.

A month later the ANC gets the Organisation of African Unity and the United Nations to adopt the Harare Declaration, which sets out the basis for the transition to democracy and demands that a representative and elected body draft South Africa's constitution.

In September 1989 FW de Klerk becomes State President and the Mass Democratic Movement (a latter-day incarnation of the UDF) organises a defiance campaign.

On 15 October several ANC leaders are freed and on 8 December the Conference For A Democratic Future takes place: 6 000 representatives of the MDM pass a resolution in favour of negotiation.

Also in December, Nelson Mandela - after meeting top NP cabinet ministers - writes a letter to De Klerk: he again warns of an urgent need for negotiations. Meanwhile, the ANC's national executive committee (NEC) meets in Lusaka and resolves to consider a negotiated settlement.

However, the real watershed comes at the opening of parliament on 2 February 1990. De Klerk announces the unbanning of the ANC, the South African Communist Party and other liberation movements. Two weeks later, on 12 February, Nelson Mandela walks free; many other political prisoners and detainees are also released and unbanned.

In April the first ANC leaders - led by Mbeki - return from exile to begin negotiations and days later, on 2 to 4 May, the Groote Schuur Minute is signed, sealing a commitment by the ANC and the NP to pursue peace and negotiations. The government grants temporary immunity to some ANC members and promises to review security laws and lift the state of emergency.

The Pretoria Minute follows on 6 August: the NP and the ANC agree that the release of more political prisoners will start on 1 September. The ANC agrees to suspend the armed struggle and to move towards a negotiated settlement.

However, violence - sponsored by Inkatha (now renamed the Inkatha Freedom Party) or a mysterious "third force" - spreads from Natal to the Witwatersrand.

Another agreement follows on 12 February 1991: the DF Malan Accord extends the ANC's promise to lay down all arms.

But in June 1991 the process hits one of its first hurdles: the "Inkathagate" scandal. It emerges that the IFP's trade union arm has been receiving large amounts of covert funding from the government and that the South African Defence Force has been involved in death squads and the violence engulfing the country. In response, the ANC halts all meetings with the NP government.

The next month an ANC meeting demands the installation of an interim government and the party's national working committee (NWC) is instructed to get to work on an all-party congress. In August it sets up a new sub-committee, the negotiations commission.

In September the National Peace Accord, the country's first multiparty agreement, is signed and the negotiations commission starts exploring the idea of an interim government.

In October talks-about-talks intensify. The ANC's NWC instructs its negotiations commission to arrange talks about an all-party congress. Bilateral discussions are held with - among others - the NP, the Labour Party, the IFP, homeland parties and the governments of Venda and the Transkei.

Later in the month the Patriotic Front, a loose alliance of anti-apartheid parties, is launched. The conference agrees on a joint programme for the negotiated transfer of power.

November is dominated by preparations for the multiparty talks: the ANC spends the month consulting parties, sketching an agenda and settling dates. But the talks, which are supposed to start the same month, are delayed by IFP dissent about who should attend.

Nevertheless, on 29 and 30 November the all-party preparatory meeting takes place: 20 organisations and parties attend. It is decided that the name of this forum be the Convention for a Democratic South Africa (Codesa) and that, where there is disagreement, the principle of "sufficient consensus" be the decision-making mechanism. But, 10 minutes before the end of the meeting, the PAC leaves - accusing the ANC of "selling out".

Codesa's first session, on 20 and 21 December, adopts a declaration of intent, which all parties - except the IFP and the Bophuthatswana government - sign. The NP confirms for the first time that it is prepared to accept an elected constituent assembly, provided that it also acts as an interim government.

In February 1992 the NP accepts the ANC's demand for an interim government and the principles that a new South Africa be non-racial, non-sexist and democratic. A Codesa working group produces an initial agreement on general constitutional principles.

In March the NP holds an all-white referendum to test support for the negotiations process - and receives overwhelming backing for reform. In the same month the ANC submits proposals for a two-phase interim government.

In early April initial agreements emerge that the interim government have two stages: the first would consist of the formation of a Transitional Executive Council (TEC); the second would commence after the elections and consist of the interim government and constituent assembly. The TEC would be multiparty in form and function alongside the existing parliament. Sub-committees of the TEC, with executive powers, would be established for key areas of government.

In the beginning of May the parties head for Codesa II, the second plenary session, where the ANC hopes to achieve agreement on a two-phase interim government. Codesa meets on 15 and 16 May: tensions soon emerge and the gathering hits a deadlock on the question of special majorities required to adopt a final constitution. After consultations with other members of the Patriotic Front, the ANC puts forward a compromise proposal. But on 26 May an ANC meeting decides to abandon its compromise position.

At the end of the month the party's policy conference sets guidelines for the transfer of power and conditions for an election, and also asks for the drafting of a "transition to democracy Act" as a transitional constitution.

The ANC and its Tripartite Alliance partners - the SACP and the Congress of South African Trade Unions - launch a mass-action campaign on 15 July.

A massive setback occurs on 17 June, when more than 40 people are massacred during a march in Boipatong - a sign of the determined effort of some to derail negotiations. Days later ANC leaders meet to discuss the implications: they reaffirm a commitment to a settlement, but break off all negotiations and accuse the government of complicity in the soaring violence.

The ANC sends a list of demands to De Klerk and a few days later the president responds: he denies government involvement in the violence and refuses to commit himself to majority rule. However, he takes steps to reduce the temperature - disbanding some notorious battalions, banning dangerous weapons and agreeing to international monitoring. In August a United Nations committee arrives in South Africa.

At the beginning of September the ANC chooses its secretary-general, Cyril Ramaphosa, to establish a channel of communication to replace bilateral meetings and to allow contact to continue. Ramaphosa and Roelf Meyer, his NP counterpart, go trout-fishing together. Ramaphosa's wife famously removes a fly hooked in Meyer's hand.

Just a few days later, on 7 September, soldiers in Bisho, in the Ciskei, open fire on people who, as part of the mass-action campaign, are protesting against the homeland government. Many die. The Bisho tragedy shocks both sides back to the negotiating table.

On 26 September the two parties agree on a record of understanding. This deals with a constitutional assembly, an interim government, political prisoners, hostels, dangerous weapons and mass action.

In November the ANC and the NP agree to resume bilateral negotiations and the ANC embarks on a series of meetings with other parties. In December 1992 and January 1993 they meet to discuss a range of issues and suggest that a planning conference be held in March.

On 4 and 5 March the negotiations-planning conference is held at the World Trade Centre in Kempton Park, near Johannesburg. Twenty-six parties and organisations attend; a resolution calling for the resumption of negotiations is adopted.

At the end of March the Patriotic Front meets - and collapses as the PAC and Azapo accuse the ANC of "selling out"

On 1 April the Multiparty Negotiating Forum (MPNF) gathers. Again, 26 participants - including the PAC, the Conservative Party and the Afrikaner Volksunie - meet. The meeting is a success and defines the issues to be dealt with at the multiparty negotiations. The forum sets the terms for a Negotiating Council.

But the process is nearly plunged into crisis on 10 April, when Chris Hani, the SACP leader, is assassinated by right-wingers.

A week later the ANC and its allies meet and demand the following: that there be an immediate announcement of an election date; that the TEC be installed as a matter of urgency; and that all armed formations be placed under multiparty control. The ANC also calls for negotiations to be speeded up.

Later in April, the Negotiating Council sets up technical committees to carry on the negotiations. They are run by "experts" rather than party representatives; they comprise six people each. This marks a change from the style of negotiations adopted during the Codesa period.

In May a report by the MPNF's planning committee proposes the establishment of two more technical committees. The committee also approves a draft resolution noting an urgent need to inspire confidence in negotiations. The resolution commits parties to ensuring that an election date is set in five weeks.

In June it is decided that 27 April 1994 be the date for South Africa's first non-racial elections. The technical committee on constitutional matters is asked to produce a transitional constitution that will lead to the drafting and adoption of a final, democratic constitution by an elected assembly.

On 25 June Eugene Terre'Blanche and members of his Afrikaner Weerstandsbewging storm the World Trade Centre, the site of the talks, in protest. The ill-fated "invasion" becomes a symbol of the right wing's resistance to negotiations - and of the threat of insurrection and civil war.

The Concerned South Africans Group - an unlikely alliance of Bantustan leaders and right-wing Afrikaners - is formed. It stages a walkout from the negotiations, but returns to the next meeting. The IFP rejects the direction of the constitutional committee and proposes a federal constitution - which is rejected in a vote.

However, after months of preparation, a summit between Nelson Mandela and the IFP's Mangosuthu Buthelezi takes place; it seems to ease the IFP's concerns.

On 2 July the MPNF reaches agreement on the following steps towards a new constitution:
  • the MPNF shall adopt constitutional principles providing for strong regional and national government;
  • these constitutional principles shall be binding on the Constitutional Assembly and justiciable by a Constitutional Court;
  • a commission on demarcation will make recommendations on regional boundaries during the transitional period;
  • it shall agree on legislation to make provision for the levelling of the playing field before elections;
  • it shall agree on details of discriminatory legislation to be repealed; and
  • it shall agree on a transitional constitution.

On 26 July the technical committee on constitutional matters produces its draft outline of a transitional constitution for discussion.

On 25 to 28 October the ANC and the NP reach agreement 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. The NP abandons its claim to a veto over the decisions of the cabinet.

On 16 November 1993, in a last-minute bilateral meeting between Nelson Mandela and F.W. De Klerk, agreement is reached on the final issues required to complete the interim Constitution - a deal that becomes known as the "six-pack" agreement.

The MPNF ratifies the interim Constitution in the early hours of the morning of 18 November.

In the meantime, however, violence between IFP and ANC supporters on the East Rand escalates to the point of civil war.

In January 1994 the TEC is established. But the IFP remains the biggest problem.

In March Nelson Mandela and Dr Mangosuthu Buthelezi agree to international mediation over the status of KwaZulu, but the agreement falls apart before mediation can begin.

Bombs go off in central Johannesburg and on March 28 eight IFP marchers are killed and 84 injured outside Shell House, the ANC's headquarters, in the city

In the same month, Ciskei and Bophuthatswana collapse under the pressure of internal discontent.

Terre'blanche's AWB rushes to the defence of Bophuthatswana's leader, Lucas Mangope - but his commandos are massacred, with the TV cameras rolling. The dangers of insurrection are made clear to right-wingers and General Constand Viljoen is wooed into the process by the ANC, with the promise that a volkstaat will be considered. Viljoen sets up the Freedom Front, which decides to contest the elections.

Finally, just days before the elections, agreement is reached through a Kenyan negotiator, and the IFP comes on board.

Constitutional democracy: 1994 onwards
South Africa's first non-racial election takes place on 27 April. The PAC also agrees to participate at the last minute.

This election produces 400 leaders in the National Assembly and 90 in the Senate. In terms of Section 68(1) of the interim Constitution, a joint sitting of these bodies forms the Constitutional Assembly, which is established on 9 May. Nelson Mandela is inaugurated as democratic South Africa's first president on 10 May.

The Constitutional Assembly has to work within particular parameters. These are the requirement of a two-thirds majority for the adoption of the text, compliance with 34 constitutional principles agreed to in the interim Constitution, and the adoption of a new constitution within two years.

In June the constitutional committee is established. This becomes the premier multiparty negotiating body in the Constitutional Assembly. It is led by Ramaphosa and Meyer.

In September six theme committees are established to receive and collate the views of all parties on the substance of the Constitution.

In January 1995 an advertising campaign is launched to elicit public views on what should be in the Constitution.

On 19 September the first consolidated draft of the new Constitution is produced. A month later the first refined working draft is published.

But by February 1996 there are 68 outstanding issues that need to be settled.

Concern mounts that the Constitutional Assembly might not be able to finish its work by 8 May 1996 - the deadline.

But at the beginning of April, the Arniston Multilateral is held and the parties resolve their differences. Later in the month, the channel between Ramaphosa and Meyer is reinstated to find solutions.

By 22 April several sticking points remain: the death penalty, the lockout clause, the property clause, the appointment of judges and the attorney-general, language, local government, the question of proportional representation and the bar against members of parliament crossing the floor.

On 23 April the draft is tabled without key outstanding issues being resolved. Two days later, negotiators table 298 amendments - but most are of a technical rather than substantial nature.

On 8 May, after a two-year process, the final text is adopted and on 1 July the Constitutional Court's certification hearing begins. But on 6 September the Court finds that the text does not comply with the constitutional principles and refuses to certify it.

The text is amended; in October it is adopted by the Constitutional Assembly and sent to the Constitutional Court again. On 18 November the Court's second hearing begins and on 4 December it certifies the final text.

Nelson Mandela signs the Constitution into law in Sharpeville, in Vereeniging, on 10 December, which is international Human Rights Day.

The Constitution comes into effect on 4 February 1997. The week of 17 to 21 March is named national Constitution Week: more than seven million copies of the Constitution are distributed in all 11 languages.
 
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