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.
The Constitutional Committee _ the CA's multi-party `engine' _ held a bosberaad at Arniston from 1-3 April to try reach agreement on outstanding issues in the final constitution. Most parties agreed that the bosberaad was a great success, with progress being made on numerous issues. Below is a summary of the agreements reached.
Discussions took place between the parties on a bilateral basis on the national anthem and language provisions in this Chapter. Substantial progress has been made in reaching agreement on these matters which it is hoped will be resolved in the course of the following two weeks. The Preamble is to receive the urgent attention of the parties during the course of the next two weeks.
Clause 8: Equality
Final agreement has not been reached on the formulation of this clause, with the
technical experts having recently proposed an alternative formulation which is receiving
the urgent attention of all parties. Parties are however close to reaching agreement on
the clause, with most of the applicable principles having been agreed.
Clause 10: Life
It is agreed that the text is to read "Everyone has the right to life", with
margin notes reflecting the views of other parties concerning the death penalty. Whilst
final agreement has not been reached on this clause, it seems more than likely that all
parties will agree to a simple right to life formulation.
Clause 11: Freedom and Security of the Person
Parties have tentatively agreed to a re-formulation of this clause to include a
reference to the right to "make decisions concerning reproduction" and to
"control over one's body". The NP remains concerned that this clause must not
permit abortion on demand, assisted suicides or euthanasia and is still to consider the
final formulation. Whilst the clause has therefore not been finalised, substantial
progress has been made in resolving the disputed aspects.
Clause 13: Privacy
In order to reach agreement on this clause, the ANC has agreed to do away with its
previous proposal that this clause be limited (as are comparable clauses in various
international instruments) by way of a reference to "reasonable" or
"arbitrary" searches. The clause is therefore to read as is set out in the third
working draft and, as with all other rights, is to be read subject to the provisions of
the limitations clause (clause 35).
Clause 14: Religion, Belief and Opinion
This clause has been agreed between parties with minor amendments to formulation.
Clause 15: Freedom of Expression
It has been agreed that freedom of expression which constitutes "hate
speech" not be afforded constitutional protection in the Bill of Rights. In addition
there is to be no reference in this clause to media funded or controlled by the state, as
had previously been set out as sub-clause 15(3).
Clause 16: Freedom of Assembly, Demonstration and Petition
It has been agreed that the right to picket be included in this clause.
Clause 21: Freedom of Occupation
Parties have agreed that the clause in the Interim Constitution entrenching a right to
Economic Activity be done away with and replaced with a "right to choose freely their
trade, occupation or profession".
Clause 22: Labour Relations
The right to strike and lock-out remain the key areas of disagreement in this clause.
Creative solutions are being sought to this deadlocked issue which is likely to be
resolved in the course of the following two weeks.
Clause 23: Environment
Parties have agreed that the protection of the environment through legislative and
other measures be detailed so as to ensure that steps be taken to prevent pollution,
ecological degradation, promote conservation and secure the "ecologically sustainable
development and use of natural resources whilst promoting justifiable economic and social
development".
Clause 24: Property
A new formulation which is to form the basis of discussion between parties has been
agreed. This clause is to receive the concerted attention of all parties within the next
two weeks.
Clause 27: Children
Parties agreed, following a consideration of public submissions, that provision was
needed for the representation of children in civil matters and the protection of children
in situations of war or conflict.
Clause 28: Education
The NP has persisted in its view that the Bill of Rights make provision for the state
to fund language or culturally-based schools. A formulation which would be acceptable to
all parties is currently being sought.
Clause 31: Access to Information
It has been agreed between parties that this clause be formulated as a right which is
to be given effect to by way of national legislation. In addition, parties have agreed
that the transitional arrangements include a clause requiring the state to pass such
legislation within three years, failing which the clause as set out in the Interim
Constitution would apply.
Clause 32: Just Administrative Action
The parties have in broad terms agreed to a formulation of this clause, which provides
for a right which is to be given effect to in national legislation within three years. A
clause is to be included in the transitional arrangements - similar to that concerning
Access to Information.
Clause 34: Arrested, Detained and Accused Persons
It has been agreed that a right to adequate exercise be included in 34(2)(a). In
addition, parties agreed that evidence only be excluded "if it would render the trial
unfair and otherwise be detrimental to the administration of justice."
Clause 35: Limitations Clause
Given the importance and impact of this clause, the precise formulation is receiving
much attention by the parties. Various formulations have been placed on the table and are
still being considered.
The primary areas of disagreement currently involve the formulation of factors to be taken into account by the court in considering any limitation of rights.
The ANC prefers a broad approach, which steers away from anything which may be construed as a necessity test.
It is therefore preferred that factors to be considered by the court are formulated in such a way as to not tie the courts hand but leaves any limitation open to the court for decision.
Other parties are however not in agreement with this approach.
Clause 36: States of Emergency
This clause is still receiving attention of the parties, particularly regarding the
majority needed in Parliament to reimpose a state of emergency (the ANC prefers a simple
majority). It is agreed that the list of non-derogable rights set out in this section be
reduced and this matter is being attended to by the technical experts.
The remainder of the Bill of Rights is agreed between the parties.
Electoral system
The parties have agreed that the electoral system for members of the National Assembly
be by way of national and/or provincial lists to ensure that membership of the National
Assembly is based on a system of proportional representation. The precise formulation of
the clause is to be refined.
Size of the National Assembly
It is agreed that the size of the National Assembly is to be noted as a tentative 350
(which is to be placed in brackets), with the matter still to receive attention.
Constitutional amendments
The percentage required to effect an amendment to the constitution has not to date
been agreed. The ANC insists on a 2/3 majority, whilst the NP prefers 3/4. The 5th working
draft is to reflect a 2/3 majority, footnoting other views.
The ANC is not prepared to see a continuation of the Government of National Unity in the new constitution, nor of any form of constitutionally entrenched coalition between parties. The question of multi-party participation in the National Executive is currently being discussed.
It is agreed that there will be one Deputy President. No provision is to be made for a Prime Minister.
Parties have agreed that the National Council of Provinces is to fall under the definition of Parliament.
There is general agreement on this Chapter, with parties still having to finalise certain minor issues.
The Attorney-General
Parties have agreed that there will be one prosecutorial authority for SA consisting
of a national Attorney-General (appointed by the President). Other Attorneys-General would
fall under the office of the National A-G who would be responsible for laying down policy
guidelines and for ordering prosecutions where the guidelines have not been met. The
appointment of Attorneys-General, apart from the National A-G, is to be provided by law.
Acting judges
The position set out in the 3rd working draft is to be retained with the deletion of a
reference to "on the advice of" in 101(1) and a deletion of 101(3).
Appointment and tenure of Constitutional Court judges
Judges of the Constitutional Court are to be appointed by the President after
effective consultation with the leaders of the opposition. Six nominees are to come from
the National Assembly, three of whom are to be proposed by opposition parties.
Agreement as to the tenure of Constitutional Court judges remains outstanding - with parties still to decide whether this is to be 10 or 11 years.
The Judicial Service Commission
Parties agree that 104(1)(I) allow the President to appoint 4 persons after effective
consultation with leaders of the opposition. The current requirement that two of these
persons are practising attorneys or advocates is to be deleted.
104(1)(g) be amended to allow teachers of law and not only professors to be members of the JSC.
General agreement has been reached on this Chapter. Parties have agreed to insert a reference to a structure which will oversee broadcast media. The formulation of such a clause is to be considered shortly.
Mechanisms for the appointment of officers to the structures in this Chapter have not been agreed. The ANC would prefer to see a reference to an ordinary majority of Parliament in this Chapter, whilst the NP prefers 2/3. Provision for the office of provincial public protectors remains contentious. The ANC supports the constitutionalisation of a single Public Proector whilst the NP and DP want Provincial Public Proectors constitutionalised.
Parties have agreed that the minimum and maximum numbers of members of provincial legislatures should be constitutionalised (Precise figures are still to be finalised). Provisions relating to the electoral system, the Speaker and Deputy Speaker are to be brought in line with the applicable provisions pertaining to the National Assembly.
General agreement has been reached as to the formulation of this Chapter. Only the schedule listing provincial competencies and certain additional issues _ chiefly involving formulation _remain outstanding.
A further draft of this Chapter is currently being prepared and will be finalised within the course of the following two weeks.
The parties have agreed that such a draft should reflect the view that local government is a separate tier of government but that it exists within the overarching framework of provincial and national government. Decision is required between the parties as to whether a person living in one area and paying rates and texes in another is entitled to vote in both areas.
It is agreed that the name of this Chapter is to be changed to "Traditional Leadership" and that the Chapter deal only with the relevant principles applicable.
The ANC is accordingly of the view that clause 2 should be removed from the Chapter and dealt with in the transitional arrangements.
It is agreed between the parties that:
Agreement has been reached with most parties regarding this chapter, with certain refinements to draft formulations of having been considered.
Constitutional issues still outstanding
The issues in the constitution which still need to be resolved before the 9 May deadline include:
Created: 18 April 1996