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.
At the first sitting of the national assembly, on 9 May 1994, the stop watch for the writing of the final constitution began. According to the interim constitution, the new constitutional text had to be passed within two years from that date.
Now in March 1996, the two years is almost up, and the constitutional process is nearing completion. In those two years a lot of work has been done, and lot of ground covered.
At its first meeting, the 490-member Constitutional Assembly elected ANC secretary general Cyril Ramaphosa as chairperson and NP leader Leon Wessels as deputy chairperson.
During the first three months, members of the Constitutional Assembly (CA) were engaged in the important task of establishing the first democratic parliament. This resulted in very little work being accomplished in the CA itself. Structurally, the CA relied on a Steering Committee which considered the initial conceptual aspects of carrying out the work of constitution-making.
The Constitutional Committee, a 46-member representative forum empowered to negotiate substantive issues, was formed in August 1994. During the following month the six theme committees met for the first time to consider different aspects of the constitution. The CA agreed on a strategy for the "Process and Framework of Drafting the New Constitution".
The substantive work of the CA started at the end of January 1995. The first four months of 1995 were spent with theme committees producing reports and analysing more than 22 000 submissions received in response to an advertising campaign. The first substantive reports from theme committees were tabled before the Constitutional Committee in February 1995.
In March 1995, the ANC held a national constitutional conference at the World Trade Centre, with delegates drawn from ANC national and provincial structures, the Youth League, the Women's League, Cosatu, SACP and organisations of the Mass Democratic Movement. The conference produced the 'Building a United Nation' document which contained the ANC's positions on all constitutional chapters. A key proposals from this conference was the 'cooperative governance' model, where the powers of the provinces were related to a strengthened senate to encourage cooperation among provinces and between provinces and the national government. The conference also resolved that there should be no constitutionally enforced coalitions, that there should be a combination of proportional and constituency-based representation in parliament and that the bill of rights should protect the dignity of individuals, not their economic privileges.
At the same time, the ANC's Constitutional Commission established Constitution News as a publication to keep the democratic movement informed of progress in the constitution-making process. The publication of Constitution News was suspended until now because of a lack of capacity.
The first draft formulations of the new constitutional text appeared in April 1995. These were tabled in the Constitutional Assembly in May 1995.
Throughout this time, the Constitutional Assembly was engaging in an ambitious programme to ensure public participation in the constitution-making process. The public participation campaign enabled millions of ordinary South Africans and many organisations to make their contribution to the new Constitution.
A media campaign called for specific responses on issues ranging from individual rights and freedoms to the workings of the public service and police - even what the new national anthem should be. Thousands of people and organisations responded. Submissions, including signatures on petitions, almost reached the two million mark.
Television, radio and print media, including the CA's own Constitutional Talk newsletter, kept the public up to date with the process.
A weekend programme of Community Participation Meetings was held to take theme committee members to meet members of the public in the remotest corners of all nine provinces. Enthusiastic crowds turned up to give their views on what should and should not be in the Constitution.
National sector hearings were held to give Theme Committee members the opportunity to receive input from hundreds of organisations. The sectors consulted included business and labour leaders, children's rights activists, traditional leaders and women's groups.
This campaign culminated with the publication and mass distribution in November 1995 of four million copies of the Working Draft of the new Constitution in all 11 official languages.
The public was presented with the entire constitutional text, with options on areas where there was still no agreement, accompanied by explanatory articles and graphics, and asked to comment. The result was thousands of fresh submissions from individuals and organised civil society. These submissions have all been processed and submitted to the political parties and constitutional committees for their consideration.
Since the beginning of 1996, negotiations have been taking place around those issues which are still outstanding. See pages 3 and 4 for a summary of some of the outstanding issues.
Sub-committees have been established to try reach agreement on particular outstanding questions, while parties negotiate with each other in a series of bilateral and multi-lateral meetings.
The Constitutional Assembly is scheduled to meet on 8 May to pass the final constitutional text. Until then Constitution News will be coming out every two weeks to keep people informed of progress.
With the 9 May 1996 deadline looming for the adoption of the new constitution, the pressure is on political parties to reach agreements on outstanding issues.
While much progress has been made, no agreement has been reached to date on the following issues:
The Interim Constitution requires that the national anthem be determined by the President by proclamation in the Government Gazette. There is no agreement between the parties that this position be retained in the new constitution. The NP stands by its view that the current anthem, which is a combination of Nkosi Sikelel' iAfrika and Die Stem must be constitutionalised. The ANC wants Nkosi Sikelel' iAfrika to be South Africa's anthem after 1999.
It is agreed that the current 11 official languages of South Africa be retained. What is not agreed is the status to be granted to languages such as Afrikaans and English, the official languages before the Interim Constitution. The powers of provinces to declare any of the official languages as languages of use in a province need to be finalised.
There is general agreement as to the formulation of this clause. Parties have agreed that the clause enable legislative and other measures to be taken with the aim of protecting or advancing people disadvantaged by "unfair discrimination". The ANC has strongly argued for the inclusion of this clause which will allow affirmative action measures to be implemented.
There is deadlock between the parties on the right to life. The NP strongly supports the qualification of this right so as to allow the retention of the death penalty to be declared constitutional. The ANC opposes the retention of the death penalty and supports a general right to life.
Negotiations on this clause have deadlocked with the NP and DP supporting the inclusion of an employer's right to lock-out together with the right to strike. The ANC supports the inclusion only of a right to strike in this clause, given, among other issues, the balance of power which already exists in the employer's favour in the workplace.
The NP persists in its demand that provision be made for what has been termed "cultural self-determination" in clauses dealing with education, language and culture in the Bill of Rights.
The extent to which the rights contained in the Bill of Rights are to apply to juristic persons (such as corporations) is outstanding.
Agreement still has to be reached between the parties concerning the extent to which the Bill of Rights is to be horizontally applicable - to apply between the state and individuals, as well as between individuals themselves. The ANC's view is that the Bill of Rights should be applicable as far as possible.
Most parties support a mixed electoral system, in which there is both constituency-based and proportional representation.
The parties are bound by the provisions of Constitutional Principle VIII which requires that "(t)here shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a common voters' roll, and, in general proportional representation."
The details of the electoral system have yet to be resolved and will in all likelihood be dealt with in an Electoral Act, with the constitution detailing only the relevant principles applicable to the system.
There is a wide range of vastly differing opinions on this matter. Political parties themselves have internal differences on the issue. The ANC has motivated that the seat of parliament should not be constitutionalised given the sensitivity of the matter and the need for public participation.
The parties have not as yet agreed to the majority required to amend the constitution. The ANC argues for a 2/3 majority, whilst the NP has suggested 75 percent.
General agreement has been reached on the principles of the ANC's proposed Council of Provinces to replace the old Senate. This structure aims to secure better provincial representation at national level and a proper interaction between the provincial legislature and national Council of Provinces.
There is no agreement yet on the national executive. This issue is currently receiving attention between the parties.
The procedure for the appointment of judges, particularly the necessity to consult with the opposition before appointing Constitutional Court judges remains an outstanding issue. The composition of the Judicial Service Commission is also receiving attention, with parties holding differing views as to the structures which should be represented on this body and in what proportion.
The ANC strongly supports the establishment of a national attorney-general with provincial offices falling under the national A-G's office. Other parties are still considering this proposal and the issue has yet to be finalised.
The question of the inclusion, or exclusion, of a property clause in the final constitution has been a matter of much debate. Conservative parties have sought to entrench property rights in a way which make redress of past injustices extremely difficult.
The democratic movement has been arguing that land reform and restitution are important elements of the democratic transformation of South Africa, and that nothing in the constitution can be allowed to hinder that process.
The ANC's latest proposal on the property clause is designed therefore to ensure a respect for the institution of property, while enabling the state to take corrective measures in righting past wrongs.
According to the proposal, all South Africans have the right to "have equitable access to land", and the state must take reasonable and progressive measures, including legislation, to secure this access.
The proposal says that no one may be deprived of property, except in accordance with relevant legislation.
This legislation will allow expropriation only for public purposes or in the public interest, and then only subject to the payment of compensation as agreed to by a court.
In doing this, the court must determine an equitable b alance between the public interest and the interests of those affected. The court must consider factors like the current use of the property; the history of its acquisition; its market value; the ability of the state to pay; and the nation's commitment to land reform and measures to bring about equitable access to water.
The clause would ensure that every person or community dispossessed of land after 19 June 1913 as a result of any discriminatory practices would be entitled to restitution of that land, or other equitable redress.
The Congress of South African Trade Unions last month submitted to the Constitutional Assembly their comments on the working draft of the new constitution.
At the same time they held bilateral discussions with the ANC and the National Party. Speaking at a press conference after the meetings Cosatu general secretary Sam Shilowa said the meeting with the ANC had been "fruitful", and that there was agreement on all the key issues. Cosatu and the ANC aimed to move forward together as a progressive movement, he said.
The meeting with the National Party, by contrast, was disappointing. "They were either evasive [on the issues] or had no alternative proposals," Shilowa said.
Cosatu was particularly critical of the Democratic Party.
The constitutional proposals from the DP wanted to negate and undermine the rights of workers, Shilowa said.
Aspects of Cosatu's submission include:
Cosatu maintains that the access to information clause should enable workers and communities access to information held by companies, both private and public, which would be required for the exercise or protection of their rights. This means the right of access should not only be exercised in respect of government, but also in respect of 'juristic persons'.
Cosatu says the right to picket should be expressly included in the section on the right to peaceful demonstration and assembly. This would avoid later litigation.
Trade union security agreements
The limitations clause in the bill of rights should say that no rights should prevent legislative and other measures allowing trade unions and employers concluding trade union security agreements. Cosatu argues that international standards do not consider closed or agency shops as infringements of freedom of association.
Cosatu says there should be no economic activity clause in the bill of rights, arguing that it prescribes a particular economic system and is nevertheless not an internationally recognised fundamental right. Cosatu would not object to a 'vocation clause' which respects a person's right to choose their own vocation, as long as the clause was formulated so as not to limit the government's capacity to introduce things like community service for newly-qualified professionals.
There can be no trade-off between the right to strike and the right to lock out, as the NP and DP have proposed. While the right to strike is internationally recognised as a fundamental right, there is no similar recognition of the right to lock out. Cosatu similarly rejects proposals to limit the right to strike to collective bargaining, saying workers should have a right to strike over broader social and economic issues which affect their interests.
Cosatu has submitted a new proposal that parliament pass a bill by a simple majority providing for a worker's charter to be attached to the constitution. The charter would provide a flexible mechanism for incorporating workers' goals and aspirations into the constitution.
Cosatu maintains there shouldn't be a property clause in the constitution, particularly in the South African context where existing property rights are directly linked to colonial conquest and racial domination. A property clause would limit the capacity for land reform and restitution.
Cosatu supports the formulation that requires that the budgetary process, in addition to the budget itself, must promote transparency, accountability and effective financial management of the economy, debt and the public sector as a whole.
Cosatu says a limit should be placed on multiple-voting by property owners in local government elections. At the same time migrant workers should be able to decide whether they want to vote at their home or at their work area.
Cosatu supports proposals which advance the ability of national government to implement national policy at the level of economic, labour and other strategic areas. It rejects proposals from some parties, which it says would lead to the continued fragmentation and balkanisation of South Africa.
Cosatu is in favour of combining a system of proportional representation with a constituency-based system, which will allow for accountability of elected representatives and recall by their constituencies.
The principle of majority rule should apply at all levels of government, including cabinet. Cosatu is opposed to enforced coalitions, such as the Government of National Unity.
Cosatu would favour a provision on the Reserve Bank which incorporates the principles of the representivity of the Reserve Bank Board; its obligation to operate within national economic frameworks; and that it be open and transparent.
Cosatu says there should be a separate clause dealing with the right to work, which commits the government to industrial policies that will ensure job creation and preservation of existing jobs. Cosatu is currently developing a formulation for such a clause.
See Issue #1
See Issue #2
See Issue #3
Created: 18 March 1996