CONSTITUTIONNEWS

AN INFORMATION BULLETIN OF THE AFRICAN NATIONAL CONGRESS

Number 2 - 27 March 1995

Constitution News is distributed fortnightly by the ANC's National Constitutional Commission to keep ANC, Alliance and MDM structures informed of developments in the constitution-making process.

Uniting a Nation

The ANC National Constitutional Conference from 31 March to 2 April will be discussing a document entitled "Building a United Nation" which proposes ANC positions on key constitutional issues. The document identifies seven key areas that need to be dealt with in the final constitution, states the binding constitutional principles relevant to each area, discusses the main issues of contention in that area and makes proposals for ANC policy. These proposals are based on current ANC policy, as well as suggestions on what new positions should be adopted.

In order to assist you in reading and digesting the document, Constitution News provides a summary of the key points and debates in each area.

1. Constituting the Republic

Preamble

The Constitution's preamble should express a commitment to:

• an open society which protects the dignity and worth of every South African;
• a unified South Africa, founded on the sovereignty of the people of South Africa;
• overcoming the legacy of the past and preventing new forms of oppression;
• taking our place among the family of nations in Africa and the world.

The final constitution should give expression to the goal of building the people of South Africa as one undivided and united nation.

Territory

The territory of South Africa will be the whole territory of South Africa as it is at the moment. It is not necessary, but may be possible, to reflect our assertion of territorial authority in respect of the coastal waters surrounding South Africa.

Language

The eleven official languages which are recognised in the Interim Constitution should be equally recognised in the final constitution. There should be room for national or provincial governments to designate a language or languages as the official language or language of communication for any particular purpose, or generally. Every person should have the right to communicate in the courts, in Parliament and with Government in his/her own language.

Citizenship

All South Africans shall be entitled to equal and full citizenship, which may be acquired by birth, descent, marriage or naturalisation. No citizen shall be arbitrarily deprived of their citizenship, though legislation may set out the circumstances in which citizenship shall be lost.

2. Bill of Human Rights

The proposals on human rights are drawn from the Ready to Govern document. In general, the rights set out in a Bill of Human Rights need to:

• establish a balance between equality and liberty, protecting the dignity of individuals rather than their economic privileges;
• maintain a balance between democratic government and the protection of individual liberty;
• cost the guarantee of certain socio-economic rights against an audit of available resources (this doesn't preclude a floor of basic economic rights, capable of expansion through legislation or the constitution).

Not all rights can be appropriately set out in the Constitution and they may require proper elaboration in legislation.

A selection of policy on Human rights is provided on page 4.

3. National Government

National Assembly

Parliament should consist of the National Assembly and Senate. For the National Assembly a mixed system of representation should be considered, which allows for a combination of constituency-based representation and proportional representation. The national assembly should consist of between 300 and 400 members, elected at least every five years from a common voters roll. The elections should be adminstered and supervised by an independent Electoral Commission. The Parliamentary Committee System should be used to ensure executive accountability to an informed parliament.

Senate

The role and structure of the Senate needs to be changed from its present form to give provinces a more direct say in developing national legislation. The proposals need to be considered together with a revised division of competencies between provincial and national government, in a manner which emphasises the role of Parliament in law making and the role of provinces in implementation and administration.

The functions of the Senate would be:

• to have a close relationship with the provincial governments and give expression to the adminstrative experience of the provinces;
• have a say over National Assembly bills that deal with the exercise of powers and performance of provincial functions;
• bear co-responsibility for the Republic of South Africa as a whole regarding provincial interests.

The Senate should have between 50 and 100 members, with each provincial executive and the national executive appointing between 5 and 10 Senators. These Senators would be subject to recall by the executive that appointed them.

The Senate will have the power to review and to veto legislation dealing with the exercise of powers and functions which belong to the provincial level (consent bills). The Senate will be able to review, but not veto, bills dealing with other matters. The Senate will have no powers over financial bills.

(The alternatives to this proposal are to retain the Senate approximately in its present from; or to do away with the Senate and reorganise the provincial list membership of the National Assembly.)

National Executive

Coalitions between parties of the Cabinet (Governments of National Unity) will be based on voluntary political pacts, and will not be required by the constitution. The President will be elected by the National Assembly and will appoint and dismiss Ministers and Deputy Ministers at his/her discretion. The Deputy President will also be elected by the National Assembly, and will be the parliamentary leader of the majority party in Parliament. Cabinet members will be accountable to Parliament and the President.

4. Provincial and Local Government

Provincial Government

The final constitution should create a balanced and co-operative provincial system through, on the one hand, collaboration of provinces on a national level through the newly conceived Senate, and on the other hand through the division of competencies between national and provincial levels.

The guiding view in this regard is that of executive adminstration and responsibility be assigned to elected and accountable provincial governments, while the weight of legislative activity on the norms and standards remain with the national level of government.

The legislative activity of provinces will be concurrent in much the same areas as now, and in respect of "framework" legislation, should be concerned with providing for the diversity of regional conditions and practical implementation.

The guiding criteria for the allocation of exclusive and concurrent powers for national and provincial government should be accountability, effectivity and efficiency: the level at which the best results with the least government expenses can be obtained, should be the level of the allocation of the relevant power. Where there is conflict between provincial and parliamentary laws on concurrent matters, national Parliament should have overriding powers where desirable.

Local Government

Comprehensive framework legislation on local government - including its powers, functions and structures - should be enacted at a national level. The implementation and supervision of the legislation should be delegated to provinces. The national legislation should:

• prescribe the areas of self-administration of local government;
• make provision for the allocation of mandatory functions;
• allow for the implementation of this legislation by provinces;
• confer the right upon local government to make by-laws;
• confer the necessary financial entitlements, authority and controls upon local government, subject to the provinces' right to supervise such controls.

Elections to local government shall take place on either a proportional or ward basis, or both.

Traditional Authorities and Cultural Bodies

Provision will be made for an appropriate structure consisting of traditional leaders to be created by law to advise parliament and provincial legislatures on matters relevant to customary law and the powers and functions of chiefs. The powers of traditional leaders shall be exercised subject to the provisions of the constitution and other laws.

5. Judicial Authority

This chapter of the Constitution should only deal with the structure of the Courts, their respective jurisdictions and the appointment of the staff who administer them. Most of the matters relating to the functioning of the courts should be left to legislation. Proposals include the following:

• the Constitutional Court be comprised of two panels of six judges, each panel chosen en bloc by the National Assembly with a 2/3 majority;
• Supreme Court judges should be appointed by the President from nominees selected by the Judicial Service Commission;
• the Judicial Service Commission will also have a role in regard to the functioning of the magistracy, judicial training, law reform, the functioning of the courts and complaints against judges;
• legislative provision will be made to ensure that indigent persons are legally represented where the interests of justice so require;
• the Attorney General will be the highest judicial executive officer, will be a member of the Cabinet and will be reponsible for prosecuting offences in the name of the People of South Africa.

Public protector, Human Rights Commission, etc.

This section deals with institutions which need to be established to safeguard the rights enshrined in the Constitution. These include a Land Claims Court Tribunal, a Human Rights Commission, a Public Protector (ombud) and a national structure to advance gender equality. The Constitution shall protect the independence of these institutions, requiring inter alia their appointment by Parliament with a 2/3 majority.

6. The Public Service

Public Service

The final constitution should contain only a framework for the regulation of the public service. The public service should be:

• professional and career-orientated;
• broadly representative of the South African society;
• efficient, effective and reponsive in terms of the delivery of service to the public;
• loyal to the government of the day;
• transparent and accounatble to the public and Parliament.

The rights of public sector workers at all levels of government, as well as the terms and conditions of service of its members, should be regulated by national labour law.

National Defence Force

The Constitution should deal with the fundamental principles relating to the place of the Defence Force in democracy. It should prescribe that the Defence Force be primarily defensive in its structure and functions; that members of the National Defence Force not hold office in a political party; and that the SANDF comply with international customary law and treaties regarding armed conflict.

SA Police Service

The SA Police Service will have national jurisdiction to prevent crime, investigate any offences, maintain law and order and preserve the safety and security of the country. The President shall appoint a National Commissioner of Police who shall exercise command of the service subject to the directions of the Minister of Safety and Security.

7. Finance

Current provisions regarding the independence of the Auditor-General, the South African Reserve Bank and the Financial and Fiscal Commission are more than adequate. The guiding principles regarding provincial financial and fiscal affairs should be that:

• the national-provincial system should address the inefficiencies and inequities of the apartheid legacy;
• national, provincial and local governments should have adequate financial resources to exercise their responsibilities effectively and efficiently;
• South Africa should have a joint fiscal system under the leadership of national government.

The Constitution should provide that the bulk of revenue should be apportioned at national level after participation by provincial and local levels of government.

Provinces should be entitled to an equitable share of national revenue, taking into account regional imbalances and national obligations in respect of debt servicing. The Financial and Fiscal Commission will be established with a function and structure broadly similar to the existing FFC.

Constitutional Policy Conference

The ANC National Constitutional Policy Conference will be held at the World Trade Centre from 31 March to 2 April 1995.

The Conference will develop ANC policy on constitutional matters to guide our structures and representatives in the Constitutional Assembly. In preparation for the conference, workshops are being held in all provinces. As many as 3 500 people will be involved at this level.

These provincial workshops will inform discussions at the national conference. Represented at the conference will be delegates from ANC branch and zonal structures, Cosatu, SACP, Sanco and other MDM formations.

The conference will be opened by the President. The conference will review the CA process, including the current time frames for the writing of the constitution.

There will be six commissions, which will be tasked with developing ANC policy. These commissions will report to the plenary, which will adopt positions.

Following the Constitional Policy Conference, an MDM Conference will be held to gain broad support for the ANC's positions.

ANC's Guiding Principles

The Building a United Nation document proposes that the ANC adopts the following guiding constitutional principles:

1. The constitution of South Africa shall create a framework to build a united and undivided nation.
2. The character of the state shall be a multi-party democratic state based upon democratic majority rule.
3. The Constitution shall commit the country to a non-racial and non-sexist order based on the inherent dignity of all persons and the equal enjoyment of all human rights.
4. There shall be a bill of rights guaranteeing all accepted human rights including socio-economic rights and which shall be, where appropriate, applicable against all sources of power.
5. The Constitution shall as far as possible empower the poor and the vulnerable to enforce their rights and shall inter alia create a Human Rights Commission and a Public Protector to perform this function.
6. There shall be regular elections, at no longer than five year intervals, on a common voters roll based on universal adult suffrage at all levels of government. The electoral system at the various levels shall ensure accountable representation.
7. Parliament shall, subject to the Constitution, be supreme law-maker, and the expression of the will of the people. The executive will be accountable to it.
8. Parliament must not be limited in its capacity to legislate so as to address the legacyof the past including such issues as land restoration, redistribution and affirmative action.
9. Government shall be formed by the majority party or voluntary coalitions, if any.
10. Government shall be honest, accountable, transparent and cost-effective.
11. There shall be democratically elected government at regional and local levels (both urban and rural) whose powers shall be set out in the Constitution. The powers of regional government shall be subject to the need for national uniformity, national reconstruction and development, as well as the values in the Bill of Rights. National government shall be ultimately responsible for financial and fiscal matters.
12. The civil service shall be representative, impartial, and shall loyally serve the government of South Africa and mechanisms shall be adopted to ensure the accountability and transparency of the public service.
13. Separation of powers between the organs of government shall be provided for in a manner consistent with the accountability of the executive to Parliament and the principle of majority rule.
14. The role and status of traditional leaders in the non-partisan promotion and protection of customs, culture and customary law, shall be recognised, subject only to the principles set out above.
15. Powers should be distributed to the provinces so as to promote on the one hand government closer to the people, and popular participation in governance, and, on the other hand to minimise antagonistic divisions between provinces and between levels of government.
16. All provisions of the final constitution shall be capable of amendment subject only to the constitutionally prescribed majorities and procedures.

Rights for the New SA

This is the proposal from Building a United Nation on rights to be included in a Bill of Rights. It is a selection from the Ready to Govern document. The whole chapter on human rights in Ready to Govern is relevant.

1. The Bill of Rights will guarantee that South Africa is a multi-party democracy in which people enjoy freedom of association, speech and assembly and the right to change their government. Furthermore, the public have a right to know what is being done in their name.
2. The Constitution shall enshrine a strong right to information and a firm guarantee regarding the free circulation of ideas and opinions.
3. The Bill of Rights shall be binding upon the State and organs of government at all levels and, where appropriate, on social institutions and persons.
4. The Bill of Rights shall guarantee a right to a fair trial, and prohibit torture, cruel and unusual punishment or degrading treatment.
5. The Bill of Rights shall enshrine the right of a citizen to choose his or her place of residence, as well as the right of freedom of movement.
6. The Bill of Rights shall protect the right to life and the dignity of all. Such a right shall not preclude the legislature from providing for the right to an abortion by legislation.
7. The Bill of Rights shall protect the privacy of all persons subject only to reasonable restrictions to allow inter alia the state to enter property to protect vulnerable persons.
8. The Bill of Rights must guarantee language and cultural rights and religion, and respect the diversity thereof.
9. The Bill of Rights shall acknowledge the importance of religion in our country. It will respect the diversity of faiths and give guarantees of freedom of religion.
10. The Bill of Rights will protect workers rights to set up independent trade unions, to engage in collective bargaining and their right to strike must be protected. The State will be a signatory to the International Labour Organisation (ILO) conventions and commit itself thereby. The Bill of Rights will also prohibit slave labour, forced labour, the exploitation of children and discrimination in the work place.
11. The Bill of Rights will insist on the principle of equal rights for women and men in all spheres.
12. The Constitution will make it clear that seeking to achieve substantive equality and opportunities for those discriminated against in the past should not be regarded as a violation of the principles of equality, non-racialism and non-sexism, but rather as their fulfilment.
13. A new system of just and secure property rights must be created, one which is regarded as legitimate by the whole population.
    • The taking of property shall only be permissable according to law and in the public interest, which shall include the achievement of the objectives of the Constitution.
    • Any such taking shall be subject to just compensation which shall be determined by establishing an equitable balance between the public interest and the interest of those affected and will not be based solely on the market value of such property.
    • Regulating the use of property in the public interest, eg. of the environment, or the health and safety of the public shall not be construed as a taking of property rights.
    • The Bill of Rights shall establish the principles and procedures whereby land rights will be restored to those deprived of them by apartheid statutes. A Land Claims Court Tribunal, functioning in an equitable manner according to principles of justice laid out in legislation, will, wherever it is feasible to do so, restore such rights.
14. The Bill of Rights should support the provision of homes, employment and utilities such as light and water.
15. The Bill of Rights shall affirm the right of all persons to have access to basic educational, health and welfare services. It will establish principles and mechanisms to ensure that there is an enforceable and expanding minimum floor of entitlements for all, in the area of education, health and welfare. It shall commit the courts to take into account the need to reduce malnutrition, unemployment and homelessness when making any decisions.
16. Special and additional levels of protection shall be afforded to children, who will have a right to protected from neglect, abuse, exploitation or exposure to harm, as well as a positive right to basic nutrition and health care.
17. The Bill of Rights will direct that the environment be protected from desecration and nurtured, on a sustainable basis, for the benefit of South Africa, its children and its children's children.
18. The Bill of Rights will direct the state to ensure that all South Africans live in security and peace.
19. The Rights contained in the Bill shall be capable of limitation where such limitation is justifiable in a democratic, open society based on freedom and equality.
20. In the international sphere, the state shall become a party to suitable human rights conventions and in particular those dealing with racism, gender discrimination and the rights of children, which apartheid has until now rejected. In this way we shall assert our rightful place in the international community. Treaties which impact on South African legislation shall require the approval or participation by the South African Parliament in the form of a national law.
21. The Bill of Rights shall guarantee a right to procedurally fair administrative action where a person's rights or interests are affected.
22. These rights shall be derogated from
    • only in a state of emergency necessarily and properly declared to protect the security of South Africa, and
    • only if the Constitution does not specify that the right in question may not be derogated from, and
    • only to the extent necessary to restore the security of the nation and the safety of its people, and
    • only to the extent that such derogation is consistent with international law on the nature and extent of derogation of human rights in exceptional circumstances.

See Issue #1

Created: March 1995