An Information Bulletin Of The African National Congress
Number 3 - July 1995
Constitution News is distributed by the ANC's National Constitutional Commission to keep ANC, Alliance and MDM structures informed of developments in the constitution-making process.
In this edition ofConstitution News we provide the first part of an updated summary of the proposals adopted by the ANC Constitutional Conference held at the beginning of April. The proposals, which will continue to be developed through discussion within the structures of the organisation, will be the basis of ANC input into the Constitutional Assembly. In the next edition of Constitution News, due out in the second week of July, we will provide a summary of the second half of the ANC's constitutional proposals.
Part 1
CONSTITUTING THE REPUBLIC OF SOUTH AFRICA
The constitution's preamble would express a commitment to:
The eleven official languages which are recognised in the Interim Constitution would be equally recognised in the final constitution. There would be room for national or provincial governments to choose certain languages as the official languages or for use in particular instances. Every person would have the right to communicate in the courts, in parliament and with the government in their own language. All South Africans would be entitled to equal and full citizenship, which may be acquired by birth, decent, marriage or naturalisation. Citizenship could only be lost in circumstances set out by legislation.
Part 2
BILL OF HUMAN RIGHTS
The Bill of Rights will create a basis of guarantees which will ensure the elimination of oppression, discrimination, inequality and division. Not all rights can be properly set out in the constitution, and may need to be elaborated on through legislation.
The Bill of Human Rights needs to establish a balance between equality and liberty, protecting the dignity of individuals rather than their economic privileges. It needs also to maintain a balance between democratic government and the protection of individual liberty. In guaranteeing certain socio-economic rights the Bill should not give courts the power to set government priorities. It should establish, however, a floor of basic economic rights, which can be expanded through legislation or other parts of the constitution. The Bill would include the right:
The right to free speech would not include the right to "hate speech", which would be regulated by legislation. Similarly, details regarding the right to free publication and the circulation of pornography should be regulated by legislation.
The right to life and dignity would not preclude the legislature from making laws providing for and regulating the right to an abortion. Discussion continues in the ANC on how abortion relates to reproductive and other human rights.
The right of employers to lock-out workers, which is contained in the Interim Constitution, would be removed from the final constitution. The Bill would establish a system of just and secure property rights, which would include provision for access to land and for the redress of inequities. The Bill of Rights would also support the provision of homes, employment and services like electricity and water; affirm the right of all people to have access to basic education, health and welfare services; and direct that the environment be protected from desecration.
These rights can be limited or deviated from only in accordance with democratic tradition and international law and standards.
Part 3
NATIONAL GOVERNMENT
National Assembly
Parliament would consist of the National Assembly and Senate. For the National Assembly there would be a mixed system of representation, which allows for a combination of constituency-based representation and proportional representation. The national assembly would consist of between 300 and 400 members, however the ANC is still discussing how many representatives there should be. Also under discussion is whether there should be single or multi-member constituencies, and what the relative percentages should be of constituency and proportional representation.
Parliament should be elected at least every five years from a common voters roll, and on the basis of universal adult suffrage. The elections would be administered and supervised by an independent Electoral Commission. The commission would consist of 6 people elected by a 75% majority of the National Assembly.
The Parliamentary Committee system would be used to ensure executive accountability to an informed parliament. The committees would have the right to consider proposed legislation, to initiate new legislation and to conduct public inquiries within their area of jurisdiction.
Senate
Although the Senate would be a functioning component of the national legislature, it is dealt with in the ANC proposals in the section on provincial government. This is because of its central role in empowering provinces and in defining the relationship between national and provincial levels of government.
National Executive
Coalition cabinets (as in the Government of National Unity) will be based on voluntary political pacts only, and will not be required by the constitution. The President would be the head of state with both ceremonial and executive powers. They would be elected by the National Assembly, would have the same term of office as the assembly and would only be available for re-election once. They would appoint and dismiss Ministers and Deputy Ministers at their discretion.
The Deputy President would also be elected by the National Assembly, and would be the parliamentary leader of the majority party. Cabinet members would be accountable to Parliament and the President. The President or Deputy President could be impeached on a resolution by a 2/3 majority of both houses on the grounds of a serious violation of the Constitution or other laws or inability to perform the functions of their office.
Parliament could pass a motion of no-confidence in the President and their Cabinet, in which event the President may either resign or call a general election.
Part 4
PROVINCIAL AND LOCAL GOVERNMENT
The final constitution would create a balanced and co-operative provincial system through, on the one hand, provinces collaborating at a national level through the Senate, and on the other hand through the division of competencies between national and provincial levels. Provinces would in the main retain their present law-making competencies, while they would have a more substantial responsibility for exercising executive power and making supplementary laws.
Senate
The role and structure of the Senate would change from what it is presently to give provinces a more direct say in developing national legislation.
The functions of the Senate would be:
The Senate would have between 50 and 100 members, appointed by the provincial executives or legislatures. The possibility of including local government representation in the Senate was favourably considered by the ANC Constitutional Conference.
The Senate would be able to block, approve or initiate laws dealing with provincial matters; and would have the right to review other laws. Through the Senate, provinces would participate in the drafting of the national budget, though it would have no powers to block financial bills. Discussion is continuing on exactly how provinces would be represented in the Senate; the size, administration and functioning of the Senate; and the relationship between the Senate, the National Assembly and the Executive.
This proposal would have the twin effect of imposing national considerations upon provinces, while imposing provincial considerations on the national law-making process.
Provincial Government
Given the role of provinces in national law-making through the Senate, the provinces' law-making competencies remain very much the same as present (with the exclusion of policing, which was never properly part of provincial competencies as outlined in Schedule 6 of the Interim Constitution).
In the event of inconsistency between national and provincial legislation, the national legislation will prevail only if national uniformity is desirable; it is necessary for the country to speak with a single voice; it deals with national economic policies; or if it provides for equality of opportunity. Where a provincial law doesn't deal with any of these matters, but deals with specific socio-economic or cultural needs of a province, it will prevail over a national law. Provinces would also be responsible for developing the details of the framework legislation of the national government.
The executive powers of provinces - the essence of political governance - would be significantly expanded. The guiding criteria for the allocation of executive powers for national and provincial government would be accountability, effectivity and efficiency: the level at which the best results with the least government expenses can be obtained, would be the level of the allocation of the relevant power.
Local Government
Comprehensive framework legislation - including its powers, functions and structures - would be enacted at a national level. The implementation and supervision of the legislation would be delegated to provinces. The national legislation would:
Elections to local government shall take place on either a proportional or ward basis, or both.
Traditional authorities and cultural bodies
Provision would 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 would be exercised subject to the provisions of the constitution and other laws. The ANC continues to discuss detailed proposals on the form and function of such structures.
Negotiations on substantive constitutional issues have begun in earnest in the CA's Constitutional Committee (CC). The 46-member CC has a mandate to coordinate the work of the CA and to engage in some level of negotiations and decision-making.
Until now the main constitution-making work has been taking place in the six theme committees, which have been processing the 1.8-million written submissions; holding sectoral hearings; and attending public meetings on the constitution. As the theme committees wrap up their work, the Constitutional Committee is beginning to deliberate on the issues outlined by the theme committees.
Some discussion has already taken place on the Bill of Rights and the public service. Draft text is being prepared on the judiciary and the public protector, and should be discussed in the CC shortly.
An ANC constitutional workshop will be held on 29-30 July 1995 to address issues which were not resolved by the National Constitutional Conference in April. The workshop will broaden consultation on these issues and, where possible, develop policy guidelines.
Among the issues to be discussed is the electoral system - whether there should be single or multi-member constituencies; how many MPs and senators there should be; and what the balance should be between proportional and constituency representatives.
Other unresolved issues relate to:
Among the approximately 200 people who will be attending the workshop will be representatives from ANC provincial structures, the Constitutional Assembly, the national constitutional commission, Youth League, Women's League, Cosatu, SACP and Sanco.
Provincial workshops or consultations would need to happen in preparation for the national workshop. Working groups at the level of the NEC have been formed to develop papers which can form the basis of discussion at the workshop.
The next edition of Constitution News will contain more detail about the issues which the workshop will be dealing with.
Created: July 1995