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Creating the Birth Certificate of a New South Africa © Copyright by The 5 Creating the Birth Certificate of a New South Africa Constitution Making after Apartheid1 Hassen Ebrahim and Laurel E. Miller outh Africa’s first democratic consti- of society. It was a country that was racist, au- tution came into effect on February 4, thoritarian, and narrow. This very South Africa 1997, bringing to a close a long series had to be converted into a country—with the same people, the same physical terrain, the Sof events that defined the country’s aston- same resources, and the same buildings—into a ishing transition from oppressive minority country that was democratic and respected hu- rule and violent civil conflict to nonracial man rights. It had to be a country where people democracy. This constitution—the result of of widely different backgrounds would respect negotiations among political enemies at war each other, where everybody could live in dig- © Copyright by the Endowmentnity, and where social peace prevailed. ofThis was not long before they joined together to chart 2 not a small task. the country’s future—is both the symbol of theSouth United Africa’s seemingly States miraculous trans- InstituteThe task also was not ofsure to Peacebe accomplished. formation and the anchor of its new order. The issues facing the constitution makers Albie Sachs, a justice of South Africa’s first were extremely complex, the stakes were high constitutional court, eloquently summarized for both the privileged minority and the dis- the immensity of the challenge facing the enfranchised majority, and the parties’ posi- country’s constitution makers in looking back tions had been hardened by years of conflict. at the start of preliminary talks in 1990: Not surprisingly, both the basic principles for [South Africa] at that time was the epitome the foundation of a transformed democratic of division, repression, and injustice, a point of state, as well as the process for translating reference for anybody who wanted to condemn those principles into a final, fully ratified con- anything in the world. It was a country that stitution, were highly contested.3 sent death squads across its borders to hurt and to torture people to death and that had an or- Nevertheless, despite tremendous obstacles, ganized system of repression that extended into the parties found enough common ground to every village and into every nook and cranny enable them to agree on a new constitution— 111 112 Hassen Ebrahim and Laurel E. Miller one that is widely regarded as being among constitution would be crafted and adopted the most substantively advanced constitutions was a principal item of debate. Moreover, the in the world.4 Remarkably, South Africa also package of agreements produced by the mul- has become the paradigm for a well-designed, tiparty transition negotiations included the successful constitution-making process in- first post-apartheid constitution: the interim tended to facilitate national dialogue and rec- constitution of 1993, which both prefigured onciliation and largely accomplishing these much of the substance of the final constitu- objectives. The South African process has tion and defined the process for creating it. become the reference point for many subse- Thus, while this chapter focuses mostly on quent constitution-making exercises and has the final constitution-making process, con- undergone extensive evaluation by constitu- ducted by an elected constitutional assembly, tional scholars and practitioners.5 it begins by looking at the historical context An examination of the South African ex- from which the transition process emerged perience is essential to a study of the signifi- and the transition negotiations themselves.6 cance of the process of constitution making, The seminal agreement concerning the ar- in part because an unusual degree of attention chitecture of the transition was that it would was paid to the process’s design, and because proceed in two stages: first, closed-door ne- the leading participants explicitly recognized gotiations, in which all participating parties the importance of process to a successful ostensibly would have an equal voice, would constitution-making exercise. The constitu- produce an interim constitution and arrange- tion makers saw a link between the nature ments for a transitional government of na- of the process and the legitimacy of the out- tional unity; and second, an elected, propor- come, and perceived that, at least for the final tionally representative body would create and constitution, circumstances in South Africa adopt a final constitution. A feature of this demanded a transparent, inclusive, and par- design that was critical to drawing a wide ticipatory process. The emphasis on process range of parties into the process was the in- was at least partly due to a typically South corporation in the negotiated interim consti- African obsession with consultation; South tution of binding principles that would fetter Africans tend to be suspicious of any process the discretion of the democratically elected ©about Copyright which they have not been byconsulted. the constitution-making Endowment body. This chapter of dis- Consensus on the precise design of the pro- cusses each of these architectural elements: cess was not easily achieved, however. The the two-stage approach, the role of the in- historythe of theUnited negotiations reveals States that more terim Institute constitution, and the of use ofPeace constitu- time and energy were spent on negotiating tional principles. It then turns to a detailed the process of arriving at the final constitu- discussion of the work of the constitutional tion than on negotiating the substance of it. assembly in drafting and adopting the final Moreover, the most vigorous oppositions, constitution, and the extensive and (from a disruptions, and disturbances took place in comparative perspective) pathbreaking pub- support of process-related demands. lic consultation process undertaken by the as- The story of the South African sembly. The unique role of the constitutional constitution-making process cannot be sepa- court in certifying the final document’s com- rated from the larger story of the negotiated pliance with the constitutional principles, as transition to democracy. Constitutional is- required by the interim constitution, is then sues were integral to the set of substantive explored, as is the limited contribution of in- issues on the agenda in the transition nego- ternational players to the constitution-making tiations, and indeed, the question how a new process. The chapter concludes by assessing Framing the State in Times of Transition 113 the ways in which the constitution-making and the idea of self-determination in partic- process can be regarded as a success, and the ular. Drawing from the Atlantic Charter, the factors that contributed to that outcome. ANC drafted its own African Claims, which demanded full citizenship, the right to land, and an end to all discriminatory legislation. Background and Early Stages This was the first time that the concepts of of Negotiation fundamental rights and self-determination became demands. In 1948, however, the Na- Historical Context tional Party (NP) came to power, introduced The demand for a democratic constitutional the policy of apartheid, and enacted notori- dispensation, finally met with the adoption ously discriminatory laws.8 Apartheid pro- of the new constitution in 1996, was as old voked resistance. In response to these laws, as South Africa itself. Many of the consti- the African, colored,9 and Indian peoples of tution’s provisions were the result of years South Africa found cause to unite in action of struggle and are imbued with historical and launched a defiance campaign in 1952. significance. The first South African con- By 1955, the historical antecedents of the stitution—made by a whites-only national constitution-making process that was to un- convention and then approved by the British fold at the end of the century had already parliament—took effect in 1910, and its le- emerged: the Congress of the People took gal entrenchment of racialism catalyzed the place in that year, a meeting to which all po- unification of black leadership and helped to litical parties were invited. After nationwide shape the struggle of the majority for a sys- consultation, several thousand delegates met tem free of discrimination. The birth of the in Johannesburg to draft the Freedom Char- African National Congress (ANC) in 1912 ter, which was, in effect, the first draft of a provided the African majority with a united new constitution for South Africa.10 The po- leadership that articulated their plight and litical movement of the oppressed majority led their resistance, but more important, it was maturing, and the charter it produced offered a vision of a better life.7 Almost in- sketched a vision of the country’s political variably, the Africans’ struggles were against landscape that was to become deeply etched © Copyrighta constitutional dispensation by that providedthe Endowmentin the thinking of several generations of of the legal basis for their oppression. Accord- leaders. Moreover, consultation and partici- ingly, their vision included a just and demo- pation were already hallmarks of the move- thecratic United constitutional order. States Institutement’s style.11 of Peace Throughout the first half of the twentieth The vision of a democratic constitution century, nationalism rose on both sides of as a vehicle for solving the problems of the racial divide. Along with industrializa- deep inequality and rising violence, as well tion and the development of the economy as the touchstone for a new political order, in this period came urbanization, greater thus developed long before the first tenta- segregationist laws, and a growing militancy tive steps toward a negotiated transition in among workers. In August 1941, Franklin D. the mid-1980s. In 1961, the All-in Confer- Roosevelt and Winston Churchill signed the ence explicitly called for a national conven- Atlantic Charter, containing eight principles tion of elected representatives to adopt a that included self-government and freedom new, nonracial democratic constitution for from fear and want.
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