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The Constitution   |   The certification process
 
The Constitution of the Republic of South Africa, 1996, was the result of a long and inclusive negotiation process. But the final Constitution required more than just the backing of the country's democratically elected representatives for it to take effect.

It faced a crucial test laid down in the interim Constitution: the Constitutional Court had to certify that the new text complied with the 34 constitutional principles agreed upon in advance by the negotiators of the 1994 constitution. This was to be one of the Court's most important early tasks.

Writing the final Constitution
The writing of South Africa's Constitution was a long process that culminated in its adoption in December 1996. The final document had its origins in the interim Constitution, which required the Constitutional Assembly to adopt the new draft within two years and by a majority of at least two-thirds of its members.

A second requirement was that the text comply with the constitutional principles set out in Schedule 4 to the interim Constitution. The text would have no legal force until the Constitutional Court had certified that all the provisions complied with these principles.

Nearly two years after the inauguration of the government of national unity, the deadline for settling on the text loomed. After months of deadlock and intense negotiations, the African National Congress and the National Party reached a compromise. The document was finalised on the night of 7 May 1996 and in the early hours of the next day.

The Constitutional Court's first ruling
The Constitutional Court's certification hearing began on 1 July. Its rules allowed political parties represented in the Assembly to present arguments on whether or not the Constitution should be certified.

This process - probably the largest hearing in South African legal history - involved at least 47 advocates representing 29 political parties, organisations and individuals.

Among them were the ANC, the NP, the IFP, the Democratic Party, the Conservative Party and the African Christian Democratic Party. Cosatu, Business South Africa, the SA Agricultural Union, the Human Rights Commission and the SA Institute of Race Relations were among the organisations that made submissions.

On 11 July the Court heard the last arguments.

However, on 6 September, in the judgment Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa 1996, the Court unanimously rejected certain clauses and ruled that the text adopted in May 1996 could not be certified.

The Court identified the features that did not comply with the principles and gave its reasons for that view.

The Court said the new draft of the Constitution failed in several respects to satisfy the conditions thrashed out in multiparty talks. But it said the instances of non-compliance should present no significant obstacle to the formulation of a text that met the requirements.

The Court's president, Justice Arthur Chaskalson, said the Constitution failed in several respects to satisfy the conditions thrashed out in multiparty talks. But he said the instances of non-compliance should present no significant obstacle to the formulation of a text that met the requirements.

The Court pointed to the Constitution's failure to entrench agreed fundamental rights, its failure to protect the independence of watchdogs - including a Public Protector and an auditor-general - and to the reduction of provincial autonomy.

The Constitutional Assembly had to reconsider the text.

Back to the Constitutional Assembly
After the judgment the Constitutional Assembly reconvened to swiftly fix the flaws so that the Court would have time to certify the text that year.

On 7 October, parties reached an agreement on all eight clauses that had been rejected by the Court. The Assembly approved, with only one vote against, an amended Constitution for submission to the Court on 11 October.

The amended version contained many changes: some dealt with the Court's reasons for rejection; others simply tightened up the text.

The Constitutional Court's second ruling
The Constitutional Court's second hearing began on 18 November. On 4 December, in Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996, it granted its unanimous approval.

The judges found that the Constitutional Assembly had "conscientiously" remedied the eight defective provisions. The Court also dismissed 16 objections from the DP, IFP and the province of KwaZulu-Natal, as well as the complaints of 18 people and interest groups.

The Court certified that the text complied with the constitutional principles.

Constitution is signed into law
The text duly became the Constitution of the Republic of South Africa. It was signed by Nelson Mandela, who was then the president, in Sharpeville on 10 December 1996. It was implemented on 4 February 1997.
 
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