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 ofS 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. These principles inspired South Africa. The conference, which was at- the emerging African nationalists of South tended by 1,400 delegates from all over the Africa, for they raised the issue of basic rights country, representing 150 different religious, 114 Hassen Ebrahim and Laurel E. Miller

social, cultural, and political bodies, directed white House of Assembly, the colored House ANC leader Nelson Mandela to draw Prime of Representatives, and the Indian House of Minister Hendrik Verwoerd’s attention to Delegates; blacks were excluded. At the same its resolution. In a letter to the prime min- time, the NP began to focus on cleavages that ister, Mandela referred to the rising tide of could be exploited within the black commu- unrest in many parts of the country, stating nity. The reform packages of the 1980s aimed that “it was the earnest opinion of Confer- to create a small privileged African elite that ence that this dangerous situation could be could act as a buffer against the majority of averted only by the calling of a sovereign na- black South Africans. tional convention representative of all South The “reform and repression” strategy had Africans, to draw up a new non-racial and only limited success.14 Armed resistance in- democratic Constitution.”12 In a letter to tensified, and by 1984, armed actions had the leader of the parliamentary opposition, risen to an average of fifty operations per Mandela stated, “the alternatives appear to year. In 1985, the ANC first deployed land be these: talk it out, or shoot it out.”13 mines and began to develop a presence in ru- Instead of heeding the call of the All-in ral areas. As alternative township structures, Conference, the government banned the street committees, and people’s courts began ANC and other organizations, leaving the functioning in many areas, the state strug- majority of the population with no legal av- gled to govern much of the country. From enue to pursue its interests. By 1964, most 1986 onward, the number of attacks rose to of the ANC’s leaders, including Mandela, between 250 and 300 per year. were in jail, and others had fled into exile. As the ANC transformed from a nonviolent African nationalist organization into a revo- The Negotiated Transition lutionary liberation movement, the country slid into thirty years of armed conflict. Beginning the Search for Constitutional Solutions By the late 1970s, with mounting resis- It was against this background that in 1985 tance and increasing international condem- Nelson Mandela, imprisoned since 1962, nation of apartheid, the government was ­initiated the first secret exploratory discus- ©obliged Copyright to show some willingness byto reform. the sions Endowment in the search for a negotiated solution of Upon coming to power in 1978, Pieter Wil- with representatives of P.W. Botha’s govern- lem Botha—first as prime minister and later ment. Botha had begun to realize that the asthe president—began United reorganizing States the state. crisis Institute in South Africa was becomingof Peace unman- One of the significant developments at this ageable and that drastic political changes time was the creation of a new government would have to be made, including constitu- entity, the Department of Constitutional tional changes. Botha’s government floated Development and Planning, mandated to constitutional proposals intended to resolve introduce reforms while the security es- the crisis on its own terms and in coopera- tablishment took over the major strategic tion with black leaders of its own choosing, ­decision-making responsibilities of the state. but these went nowhere. Botha was not bold Botha’s strategy included, on one hand, mod- enough to launch genuine negotiations with est constitutional reform intended to co-opt representatives of the black majority, though elements of the opposition, and, on the other, following four years of secret talks between stepped-up repression to fend off real change. Mandela and other officials, Botha did meet In 1983, the constitution was changed to di- directly, albeit inconclusively, with Mandela vide the parliament into three houses: the in July 1989.15 Framing the State in Times of Transition 115

The environment for serious talks began by more than 6,000 delegates representing to ripen when Frederik Willem de Klerk as- 2,000 organizations throughout the country. sumed the presidency in 1989. Soon after Meanwhile, the secret talks to explore the taking over, de Klerk committed himself to feasibility of negotiation that Mandela had seeking a new constitution that would elimi- initiated in 1985 continued, through as many nate the domination of any one group by as forty-seven meetings between Mandela another. He recognized the need for inclu- and government leaders.17 These meetings sive negotiation among political party lead- allowed both sides to see that the option of ers, but—illustrating how far his party had negotiation was real and could offer both the yet to go—he remained implacably opposed opportunity to realize their objectives. But as to a one-person one-vote system, which, he there was no guarantee of the outcome of the argued, would lead to domination by the ma- discussions, both sides saw secrecy as neces- jority. In the last whites-only general election sary to ensure that the talks did not appear as of September 1989, voters gave de Klerk’s a sign of weakness. government a mandate to proceed with new Under Oliver Tambo’s leadership in exile, constitutional proposals. The demand for the ANC sought to prepare itself for negotia- constitutional negotiations was developing tion by successfully lobbying African govern- momentum, spurred in part by contemporary ments in 1989 to adopt the Harare Declara- events in eastern Europe surrounding the tion of the Organization of African Unity.18 ­collapse of communism. At the same time, Tambo was keen to seize the initiative, for the Department of Constitutional Develop- he knew that if the ANC did not, the inter- ment and Planning began looking at various national community would, and the ANC constitutional models, and all major govern- would lose control of the negotiating agenda. ment speeches now spoke of a “new South The Harare Declaration contained the first Africa.” real vision of a transition to democracy. It The accumulated pressure of South Af- called for creating a climate for negotiations rica’s political crisis, right-wing resistance, by, among other things, lifting the state of economic concerns, the changing political emergency, releasing political prisoners, lift- situation in eastern Europe, and the interna- ing the bans on organizations, and repealing © Copyrighttional community’s demands by for change the led Endowmentrepressive legislation. Once a conducive of cli- de Klerk to the inescapable conclusion that mate was created, the representatives of all clinging to power would only lead to increas- parties could negotiate a new constitution. theingly United bloody conflict. States While the liberation InstituteIn October 1989, theof government Peace uncon- movements could not defeat the government ditionally released an initial group of political by armed force, the government also could prisoners—the first tangible result of Man- not continue to govern as it had.16 Thus, in dela’s endeavors. The following month, Man- November 1989, de Klerk called for an ac- dela met with de Klerk, who had recently cord among all peoples of the country that taken office, and the government publicly -re would offer full political rights to everyone. ported the meeting. The pace of change, par- The government had no choice but to accede ticularly in the government’s posture, quick- to the demand to create a climate conducive ened from there, and 1990 opened with high to negotiation. Momentum toward a con- expectations. A major milestone of the entire stitutional negotiation was further inten­ transition process was reached at the opening sified by the Conference for a Democratic of parliament on February 2, 1990, when de Future in December 1989, organized by the Klerk made a dramatic speech—his so-called Mass Democratic Movement and attended crossing the Rubicon speech—announcing 116 Hassen Ebrahim and Laurel E. Miller

the unbanning of liberation movements, the its part, the ANC agreed to suspend armed release of political prisoners, and a series of struggle. The agreements were not always measures intended to address obstacles to implemented smoothly and quickly, but they the process of negotiation.19 By positively cleared the way for constitutional negotia- responding to a number of the demands in tions by removing obstacles, and the personal the Harare Declaration, and going further contacts among former enemies that pro- than any other minority party leader had duced them had a tremendous confidence- ever been prepared to go, de Klerk signaled building effect. his commitment to negotiate and established Nonetheless, vigorous debate arose over his bona fides. Mandela was released the fol- the central procedural issues concerning how lowing week. a new constitution would be created, includ- ing whether an interim government was nec- essary to oversee an election before the draft- Talks about Talks ing of a constitution, and whether the new Though the stage was set, the process of constitution should be drafted by a constit­ creating the conditions for substantive ne- uent assembly. While these questions would gotiations was lengthy; the parties entered not be resolved for some time, the battle lines into so-called talks about talks that lasted had already been drawn. The NP view was throughout 1990 and 1991. Political violence that the present government should remain flared up regularly throughout this period of in place while political parties negotiated both hope and uncertainty, and the talks pro- a constitutional pact, which would then be ceeded in fits and starts, with Mandela and brought into effect by the white-dominated de Klerk often needing to meet to put ne- parliament. The ANC insisted that a new gotiations back on track. Both sides courted constitution be drafted by an elected body af- international opinion and support. De Klerk ter the installation of an interim government. lobbied for lifting trade restrictions on the (In the end, as discussed below, the making basis of the reforms and policy shifts insti- of the interim constitution looked much like tuted thus far, while Mandela urged countries the process the NP proposed, while the mak- to maintain sanctions until there was proof ing of the final constitution followed closely ©that Copyrightthe process of transformation by was irre the- the ANC’sEndowment preferred model.) of versible. But progress was made. The formal The challenge of dealing with potential agreements reached in this phase—includ- spoilers, which dogged the negotiations until ingthe the Groote United Schuur Minute, States the Pretoria the Institute final constitution wasof adopted,Peace was- al Minute, and the D.F. Malan Accord—were ready evident in the early stages. On the right, the first to be signed by the government and the Conservative Party, and on the left, the the ANC. Mistrust remained high at this Pan Africanist Congress (PAC) and Azanian stage, however, and support for the process Peoples Organization, a radical liberation was not unanimous on either side. movement, rejected agreements reached by The breakthrough agreements reached in the ANC and NP. More concerning, Man- this period, and the repeals of discriminatory gosuthu Buthelezi, the leader of the Inkatha legislation that followed, constituted a step- Freedom Party (IFP), threatened that the es- by-step dismantling of apartheid and lift- calating violence would not end until there ing of repressive measures. In addition, the was agreement between himself and Man- agreements addressed the release of politi- dela; it seemed he felt that he was not being cal prisoners, return of exiles, and immunity respected as a key player.20 Mandela met with from prosecution for political offenses. For Buthelezi in early 1991, but IFP disruptions Framing the State in Times of Transition 117

and on-again, off-again boycotts continued fered procedural lessons for the successful throughout the process, despite repeated effort that followed. Nineteen organizations ANC and NP attempts to bring the party and political parties plus the government, in along. a delegation separate from the NP, attended By February 1991, formal talks had suc- the first plenary (CODESA I), which con- cessfully removed obstacles to multiparty vened in late December 1991. The agenda in- negotiations, but a further ten months of cluded, among other issues, general constitu- preparation followed before substantive ne- tional principles, a constitution-making body gotiations finally commenced. The major or process, and transitional arrangements. stakeholders used the time to develop their On the procedure for making decisions, negotiating positions, and as the ANC, NP, the forum agreed that where consensus and Democratic Party unveiled constitu- failed, a principle of so-called sufficient con- tional proposals, it became apparent that sensus would be applied, a rule that carried some convergence was developing among the over into subsequent negotiations. This ap- different parties’ perspectives. This marked a proach proved to be controversial yet useful. historic shift in the country’s politics, from Because parties were not mandated by an conflict among competing forces to compet- electorate and the process was designed to ing constitutional visions. But at the same be as inclusive as possible—no matter how time, the parties faced threats to and delays small a party may have been—it was agreed in the negotiating process emanating from in principle that no decision would be made the unrelenting spiral of violence, as well as on any matter unless the government and complications caused by the government’s the ANC, at the very least, agreed. This im- effort to be both negotiating participant and plied, however, that agreement by the ANC process referee. These difficulties reinforced and government alone would not be enough ANC insistence on an interim government for a decision to be made. The IFP felt so as part of the transitional arrangements. In aggrieved by this procedure that the party addition, major disagreement remained over challenged it in court; the Supreme Court questions concerning the process that would ruled against its claim that all decisions ar- lead to a new constitutional order, particu- rived at on the basis of sufficient consensus © Copyrightlarly who would manage theby transitional the Endowmentbe invalidated. of period and how. These questions of process CODESA I adopted a declaration of in- and the framework for a transition—includ- tent that firmly committed all parties to the theing whetherUnited an interim States authority should Institutebasic principles of genuine, of nonracial,Peace multi- be elected, what power it should have, and party democracy, in which the constitution within what constitutional framework it was supreme and regular elections were guar- should operate—dominated the agenda dur- anteed. In the South African context, the ing the next phase of negotiation. statement was revolutionary, in a sense repre- senting the preamble to the first democratic constitution.21 The first plenary also - estab CODESA I and II lished five working groups22 and a manage- The first attempt at multiparty transition ne- ment committee—a steering committee and gotiations, the Convention for a Democratic full-time secretariat had already been created South Africa (CODESA), was ultimately a in preparation for the plenary—and resolved failed one, but it produced progress on some that the second plenary session, CODESA II, substantive issues, as parties on both sides would take place in March 1992 (this was gradually shifted their positions, and it of- later postponed). 118 Hassen Ebrahim and Laurel E. Miller

The negotiating structure was large and favored a negotiated settlement. The result complex. Each party was entitled to two had the unfortunate consequence, how­ever, of delegates and two advisers in each work- encouraging the NP to overplay its hand and ing group and one delegate and one adviser hold back on some necessary compromises. each in the management committee. Also, a At the same time, progress stalled in the daily management committee and a secre- CODESA working groups, as tensions de- tariat were mandated to assist the manage- veloped over a number of issues related to ment committee and ensure implementation leveling the playing field for elections as well of its decisions. In all, CODESA involved as determining the shape and role of an in- more than 400 negotiators representing terim government. In addition, continuing nineteen parties, administrations, organiza- countrywide violence dampened the climate tions, and governments. Each working group for political activity. The ANC’s proposals in had a steering committee that attended to February 1992 for interim constitutional ar- its agenda and program of work. Also, each rangements and a final constitution-making working group tabled its reports through process resembled in many respects the result its steering committee and was directly ac- finally agreed upon twenty-one months later, countable to the management committee. but lengthy negotiations still were required Agreements concluded in this manner were to reach that end and fill in all the necessary then to be tabled at the CODESA plenary details. Bilateral meetings between the ANC for approval and ratification. It became ap- and NP were stepped up, and an eleven- parent, in hindsight, that this structure was member technical committee was established flawed in several respects: There were no to push the CODESA process forward. technical bodies to provide legal and con- Once substantive agreements on some stitutional advice, each party had to include fronts concerning the interim government its own technical experts in its delegation and the nature of the constitution-making of advisers, the working groups were large body were achieved, the management com- and therefore cumbersome, and the negotia- mittee set a date in May 1992 for the second tions occurred behind closed doors. The five plenary, CODESA II, to pressure the parties working groups commenced discussions in to wrap up other matters. The period leading ©January Copyright 1992, and CODESA soon by became the up toEndowment CODESA II saw a cycle of deadlocks of the most important locus of the country’s followed by breakthroughs followed by new political activity. The public was invited to deadlocks. With a mixture of tension and an- submitthe views United on constitutional States proposals at ticipation—and Institute tremendous of public Peace and me-­ this stage, but CODESA made little attempt dia attention—the two-day meeting went either to educate the public about its work forward, but quickly reached an impasse or to solicit seriously the views of important on issues concerning the final constitution- interest groups.23 ­making process, in particular the required In March 1992, the government held an majority for the constituent assembly to all-white referendum to confirm the support adopt the constitution. CODESA II ad- of the white electorate for the negotiating journed without ratifying any agreements, but process. The ANC opposed the referendum, with the expectation of a further plenary. but supported the CODESA management committee’s decision to call on whites to take part and vote affirmatively.24 The result was an The Multiparty Negotiating Process overwhelming victory for the NP25 and con- After the failure of CODESA, the par- firmation that the majority of white people ties spent the better part of a year negoti- Framing the State in Times of Transition 119

ating an end to the deadlock and preparing national unity, the drafting and adoption of the ground for a new round of multiparty the new constitution, the phasing-in of the talks. The months following CODESA were new constitution, and the period of consoli- tumultuous. A massacre of forty persons dation of the new democracy. prompted the ANC to break off all talks for To prepare for the resumption of talks, a time,26 and business and international in- ANC and NP negotiators held a private terests applied pressure to put the talks back meeting over several days at a nature reserve. on track. This was followed by bilateral ef- In the two years since the ANC had been forts to find compromises and, in August unbanned, this was the first opportunity 1992, the biggest mass protests seen in the that these individuals had to interact on a country since the 1950s. The latter mobilized social level, and the rapport they developed the black population around the ANC’s de- later proved invaluable. In further bilateral mands. At the same time, the ANC man- meetings, the two parties resolved many out- dated Cyril Ramaphosa (later the chairper- standing issues, putting them in a good posi- son of the constitutional assembly) and the tion to jointly drive multiparty negotiations NP mandated Roelf Meyer to establish a forward. channel of communication with the purpose The next round of formal multiparty of maintaining some form of dialogue. In talks—named the Negotiation Planning what came to be known as the channel bi- Conference—convened at the beginning of lateral, these two continued to serve as key March 1993. To set parties on an equal foot- interlocutors for the two sides through the ing, the conference was called on the basis of end of the constitution-making process, even each party inviting one another. This two-day talking behind the scenes during periods in meeting called for negotiations to resume and which talks were suspended.27 resolved that a new forum—the Multi-party The deteriorating security climate and Negotiating Process (MPNP)—would begin tumbling economy motivated the negotia- meeting the next month. Establishing a new tors to move forward. The channel bilateral forum, involving twenty-six participating produced results, and, after last-minute bar- parties and organizations, enabled the par- gaining between the two leaders, Mandela ties to create a more efficient structure than © Copyrightand de Klerk met in September by 1992 the to sign EndowmentCODESA and to look for ways toof accom - the Record of Understanding. This agree- modate right-wing objections to CODESA. ment, which represented a turning point in The MPNP structure was more efficient thethe negotiations,United addressed States major areas of Institutethan CODESA because, of instead Peace of negoti- deadlock and laid the foundation for restart- ating issues in different working groups, a ing multiparty talks.28 It also established im- single negotiating council, composed of four portant principles concerning constitutional delegates and two advisers per party, became arrangements, discussed further below. the effective bargaining forum. Compared to The following month, the ANC adopted the fragmented negotiations in CODESA’s a position paper titled “Strategic Perspec- five working groups, this was an impor- tives” that guided its negotiating strategy. tant improvement that contributed to the The document laid out proposed phases to MPNP’s better result.29 The negotiating attain majority rule that ultimately came to council initially reported to a negotiating be agreed upon and implemented: the estab- forum, but this soon fell away, and all agree- lishment of a transitional executive council, ments reached in the council were ratified by the election of a constituent assembly, the the plenary, composed of ten delegates per establishment of an interim government of party. Due to concern regarding the lack of 120 Hassen Ebrahim and Laurel E. Miller

female participants at CODESA, each party of multiparty talks33—and the establishment was required to have at least one female del- of the transitional executive council. egate at every level.30 With the same types of setbacks34 and Another innovation was the establishment breakthroughs that had characterized the ne- of five- to six-member technical committees, gotiating process until this point, the MPNP consisting of experts who had the confidence then proceeded over the subsequent months of the major parties, but who were not po- to agree, before the end of 1993, on an in- litical party representatives.31 In addition, terim constitution and the terms of a final instead of orally presenting their views in constitution-making process. The MPNP’s the negotiating council, parties made writ- role in producing these results is considered ten submissions that were considered by the further below in the discussion of the interim technical committees. This was a major im- constitution. provement because these committees’ reports accounted for everyone’s views and the com- The Constitution-Making Process mittees could serve as compromise-seeking and deadlock-breaking mechanisms. A ten- ­ Overview of the Structure of the Process person planning committee played the same The principal structural feature of the South role as CODESA’s management committee, African constitution-making process was its and a subcommittee to the planning com- division into two phases. This division con- mittee acted as secretariat. To deal with spe- cretized a fundamental compromise between cialized issues, the council established two those who sought a swift transition to ma- nonpartisan commissions to deal with demar- jority rule and those who sought to preserve cation of regions and with national symbols. some governmental influence and group Despite the process’s sound footing, cir- privileges for the constituencies of the an- cumstances were to severely test the parties’ cien regime.35 commitment to negotiation. On April 10, The first phase involved the adoption of the 1993, Chris Hani, one of the ANC’s most interim constitution, negotiated and agreed popular leaders and general secretary of the by the participants in the MPNP March to Communist Party, was assassinated by a November 1993. The negotiations took place ©­Polish Copyright immigrant with right-wing by ties. This the in a Endowmentroundtable format and produced a ofpact event prompted a violent backlash, a national among the key political parties that was then strike involving 90 percent of the workforce, enacted by the last apartheid-era parliament. andthe further United deepening of the economic States crisis. The Institute interim constitution ofprovided Peace a frame- An appeal for calm by Mandela, broadcast work for governing South Africa until the live on television on the night of Hani’s mur- adoption of the final constitution, specified der, averted a national crisis.32 In response to the process for writing the final document, the demonstration of impatience unleashed and imposed certain substantive require- by the assassination, the ANC and its allies ments for that document by including thirty- resolved to speed up the negotiating process four “constitutional principles.” A new con- and to seek early announcement of an elec- stitutional court was created as well, which, tion date and other concrete measures. The in addition to being assigned the usual duties NP, too, saw a need to instill the process with of such a body, was tapped to be the guaran- a new sense of urgency. Two immediate mea- tor of the principles; it would have to certify sures were thus agreed: a date for the coun- that the final constitution complied with the try’s first nonracial democratic election— principles for the constitution to come into and therefore a deadline for the conclusion effect. Framing the State in Times of Transition 121

In the second phase, a democratically as the adoption of the final constitution.36 elected (in April 1994) constitutional as- The interim constitution—the culmination sembly wrote the final constitution, which it of almost four years of concerted effort to adopted in May 1996. While the first phase reach a negotiated settlement—was effec- consisted only of closed-door negotiations, tively a peace treaty. It established transition the second phase saw the implementation of mechanisms, specified the process for craft- an extensive public education and consulta- ing the final constitution, and substantively tion process that opened the making of the constrained the final document through its new constitution to civil society and ordinary embrace of thirty-four binding constitu- citizens. The constitutional assembly empha- tional principles. While its operative effect sized transparency and inclusiveness in its was short-lived, its influence was peremptory work. This phase concluded with a first certi- due to the mandatory impact of the consti- fication decision by the constitutional court tutional principles on the parameters within that sent the document back to the assem- which the final constitution was written; bly for several modifications in line with the also, the constitutional assembly used the in- constitutional principles, and then a second terim constitution as the basis for its drafting certification decision approving the text. work.37 Elaborate formal negotiation and techni- The interim constitution was the practical cal support structures were constructed for embodiment of the transition from minority both phases of constitution making, particu- rule to democracy, adopted at the conclusion larly the second, which had a larger number of a negotiating process in which political of players and more complex management parties and homeland governments from needs. Parallel to the work of these structures, across the political spectrum participated. It behind-the-scenes deal making—generally was the fruit of the first stage of constitu- on a bilateral basis between the ANC and tion making and provided the basis for or- NP, sometimes in a multilateral format—oc- ganizing government and regulating society curred in both phases as well. The agreements during the transitional period from the April reached out of the public eye, which would 1994 elections to the promulgation of the fi- then be tabled in and ratified by the formal nal constitution two years later.38 Though a © Copyrightstructures, pushed the process by forward the at nu- Endowmenttime-limited framework, it was a fullyof elabo - merous critical junctures. rated constitution that created the basic in- The sections that follow describe in more stitutions of democracy.39 thedetail United the two-phase approach States and the role of InstituteOn a more theoretical of level,Peace the interim the interim constitution, the outcome of the constitution also helped to bridge the il- 1994 elections, the work of the constitutional legitimacy of the apartheid regime and the assembly in preparing the final constitution, legitimacy of the new constitutional system the certification role of the constitutional inaugurated in 1996. As Richard Spitz and court, and the (limited) foreign contribution Matthew Chaskalson have observed, the two- to constitution making in South Africa. stage constitution-making process, of which the interim constitution was a central feature, resolved the traditional dilemma of whether The Two-Phase Approach and the Role the power of the day, the “constituted power,” of the Interim Constitution has the legitimacy to serve as the “constituent In the history of the South African transi- power” by putting in place a new constitu- tion, the creation of the interim constitu- tional arrangement. If not, a new body must tion of 1993 was as important a milestone be created with the legitimacy to write and 122 Hassen Ebrahim and Laurel E. Miller

adopt a new constitution. In South Africa, As the product of a political negotiation the constituted power was a minority regime and an enactment of the apartheid regime’s lacking democratic legitimacy. In addition, parliament, the interim constitution’s demo- the MPNP, the forum negotiating the transi- cratic credentials can be seen as weak, as is tion, was unelected, and thus also lacked the often the case with interim measures in tran- democratic legitimacy to serve as the constit- sitional and postconflict settings. Given the uent power. These facts raised the question of control the interim constitution exercised how to ensure unimpeachable legitimacy for over the final constitution through the con- the new constitutional dispensation.40 stitutional principles, that weakness is not The ANC and NP devised the answer of insignificant. More important in the circum- the interim constitution, which the existing stances, however, was that the document em- parliament would approve.41 This document bodied a deal that ended apartheid; drew a would provide a link between the act of the range of parties into the constitution-making constituted power in dissolving the existing process; ensured that the final constitution order and the act of a newly elected constitu- would be created by a democratically elected tional assembly in adopting a final constitu- body; and, by providing legal continuity, pre- tion.42 To this, they added an important device vented the emergence of legal or administra- unique to South Africa: constitutional prin- tive uncertainty.45 Substantively, the interim ciples, agreed in the MPNP and enshrined constitution had to satisfy the distinct im- in the interim constitution, which circum- peratives of laying a foundation for democ- scribed the power of the elected constitu- racy and accommodating those parties whose tional assembly. This approach “corrupted the cooperation was necessary for a smooth tran- notion of a constituent power creating a new sition. In doing so, as Cyril Ramaphosa later order from nothing, but did so in a way that observed, the document “created the condi- gave any party which willingly participated in tions which allowed the final Constitution to the process a stake in its final outcome.”43 be written in a less volatile climate and far The bilaterally agreed approach, subsequently more considered manner.”46 adopted by the MPNP negotiating council, The interim constitution itself character- included a period of power sharing under the ized its role as “a historic bridge between the ©interim Copyright constitution before the transition by theto past Endowmentof a deeply divided society characterized of full majority rule, once the final constitution by strife, conflict, untold suffering and injus- was adopted. This approach provided for an tice, and a future founded on the recognition immediatethe Unitedpolitical settlement, inStates the form of of Institutehuman rights, democracy, of and peacefulPeace co- elections, the institution of a transitional gov- existence and development opportunities for ernment, and a new though temporary con- all South Africans, irrespective of color, race, stitution. At the same time, it provided con- class, belief or sex.”47 The most important trols on the transition to democracy, which building blocks in the construction of that included a period of power sharing, binding bridge were the constitutional principles, the constitutional principles, and a role for politi- idea of which was agreed between the ANC cal parties in the final constitution making. and NP in the September 1992 Record of In this way, the two-stage framework and the Understanding.48 The first eleven of the prin- interim constitution “reconciled the ANC’s ciples were developed during the CODESA desire for a swift transfer to majority rule phase of the transition negotiations; during with the NP and other parties’ concerns for the MPNP process, the number of principles structural guarantees and long-term influ- grew to thirty-four.49 The basic purpose of the ence in the constitution-making process.”44 principles was to guarantee the protection of Framing the State in Times of Transition 123

certain fundamental interests of minority The text provided that cabinet posts—up to groups, thereby gaining those groups’ accep- twenty-seven of them—would be allocated tance of a process in which the final consti- proportionally on the basis of the election tution would be adopted by a democratically results to political parties garnering at least 5 elected assembly.50 The principles’ binding percent of the vote. The purpose of this pro- nature was assured by giving the constitu- cedure was to produce a broad governing co- tional court the role of certifying the final alition to facilitate national reconciliation.57 constitution’s adherence to them before the After much debate, not only over the form document could come into effect (discussed of power sharing, but over its duration, it was further below). Neither the principles nor the agreed—at first bilaterally between the ANC certification requirement in the interim con- and NP and then in the MPNP—that coali- stitution could be repealed or amended.51 tion government could continue for five years Albie Sachs later observed that it was not until 1999.58 (In the event, the NP exited the difficult for the ANC to agree, in principle, to government of national unity in 1996.) binding constitutional principles: It wanted The story of the negotiation of the interim language, cultural, and religious rights to be constitution illustrates many of the dynam- protected, and it wanted everyone “to feel at ics of the overall transition negotiations and home in this new South Africa.”52 Reaching final constitution-making process, including agreement on the content of the principles, the parallel use of formal multiparty proce- however, was more challenging. Those who dures and informal bilateral talks between the stood to lose power wanted to “pack as much main parties, the use of deadlines to maintain as possible into the principles,” while those momentum, and the main parties’ persistence who clearly would gain power after elections in trying to keep potential spoilers involved wanted to leave as much as possible to the in the process. One aspect of the first phase discretion of a legitimately elected body.53 of constitution making that differed sig- More than any other issue, the substance nificantly from the second phase, however, of the constitutional principles concerned the was the secrecy of the process. Closed-door allocation of powers between the national meetings were essential at certain junctures and provincial levels of government.54 One of the final constitution making, especially © Copyrightlegal adviser involved in theby constitution- the Endowmenttoward the end of the process,59 butof the en- making process calculated that the thirty- tire process in the first phase was closed to four numbered principles actually included the public.60 thefifty-one United principles Statesand subprinciples, ofInstituteA brief summary ofof the Peacenegotiating his- which twenty-three dealt with the division of tory of the interim constitution during the powers. By comparison, only one prescribed, MPNP reveals these similarities and differ- in very general terms, the content of a bill of ences. In June 1993, the negotiating council fundamental rights.55 of the MPNP, which had commenced two Another key feature of the interim consti- months earlier, determined that sufficient tution was the establishment of a framework progress had been made for it to set April 27, for a government of national unity to exercise 1994, as the date for South Africa’s first ever power during a transitional period following nonracial elections. To proceed with elections, elections. (For the period between the interim the council instructed the technical commit- constitution’s adoption and the elections, a tee on constitutional issues to prepare a draft transitional executive council was established of a transitional constitution. At the same to oversee the existing government and time, on the basis of a previous agreement be- provide for a level electoral playing field.56) tween the ANC and NP, as noted above, the 124 Hassen Ebrahim and Laurel E. Miller

council agreed that the constitution-making tended to bring them on board, but the ANC body for the final document would be bound and NP resolved to proceed with the interim by constitutional principles negotiated in the constitution despite this, leaving the door MPNP.61 open for others to join the process later.63 Having set a date for elections before The main parties’ resolve to keep the agreeing on the text of an interim constitu- ­constitution-making process moving forward tion, the parties effectively set a tough dead- was manifest also in the decision-making pro- line for themselves: Agreement would have cedure used in the MPNP. Under the rules of to be reached by the middle of November to procedure, all decisions in the plenary, nego- leave sufficient time for a special session of tiating forum, and negotiating council were the parliament before the end of the year to to be reached by consensus, but if this could enact the necessary legal changes, and then not be achieved, sufficient consensus -(de for elections preparations.62 The rush meant scribed above) would do. The rotating chair- little rest: While parties were negotiating person would rule on whether consensus or outstanding issues, technical experts were sufficient consensus had been obtained. Not drafting proposals and the administration surprisingly, this procedure was controversial was preparing for the plenary. The atmo- in the MPNP, as smaller parties frequently sphere at the World Trade Centre, the site of were frustrated by their inability to gain con- the MPNP, was electric. cessions; nevertheless, this highly subjective The first draft of the interim constitution decision-making rule enabled the negotiators was published in July 1993. In it, the tech- to reach a historic political settlement.64 nical committee recommended establishing By November 16, 1993, the outstand- both a constitution-making body, made up ing issues were narrowed to a handful, and of the joint sitting of a national assembly and Mandela and de Klerk met to resolve them a senate, and a constitutional court. The in- in a crucial bilateral meeting. Mandela per- terim constitution would be the supreme law, suaded de Klerk to shift from insisting on a and the elected constitution-making body minority veto on government decisions and would be sovereign and entitled to draft and an enforced coalition to voluntary co-rule. adopt a new constitution subject only to the The outcome showed that de Klerk had come ©constitutional Copyright principles. The final by constitu the- to acceptEndowment that he would have to rely on of the tion would have to be adopted within two ANC’s commitment to national unity. In the years and by a two-thirds majority. four-hour meeting, the two leaders, assisted theBy late OctoberUnited 1993, the ANCStates and the by Institute their chief negotiators, ofCyril RamaphosaPeace NP were ready to finalize the interim con- and Roelf Meyer, agreed in principle on all stitution. Jointly, in the MPNP’s technical the outstanding issues. The NP agreed to de- committee on constitutional issues, the par- cisions being taken by a simple majority in ties tabled agreements on the text that they the cabinet. The ANC compromised on the had reached on a bilateral basis. Their agree- deadlock-breaking mechanisms for adopting ments included arrangements for a govern- the final constitution, agreeing that if a refer- ment of national unity. The main compro- endum failed, a newly elected constitutional mise in these agreements lay in the powers of assembly would be able to adopt a final con- provinces; the ANC had shifted its position stitution by a reduced, 60 percent, majority. It to accommodate the federalist demands of also agreed to provisions protecting the pow- the NP, IFP, and others. Both the IFP and ers of the provinces, and—in a concession to the right-wing Freedom Alliance remained the Democratic Party—agreed that six of the intransigent despite the compromises in- ten constitutional court judges would be ap- Framing the State in Times of Transition 125

pointed from among ten nominated by the ju- The ANC and NP later supported amend- dicial services commission.65 The ANC made ments to the interim constitution, in Febru- a further concession by agreeing to guaran- ary 1994, in a bid to draw the right wing into tee the white minority a substantial share of the process and, in particular, to secure full power in local government. The agreement participation in the upcoming elections.68 called for local government elections within All mention of concurrent powers was re- two years, and guaranteed whites at least 30 moved and the provinces were granted pow- percent of seats on each council, as well as an ers that would prevail over those of the na- effective veto for budget decisions. tional government in all areas within their The final political agreement on the text of competency. The Electoral Act, which had the interim constitution was reached in the been adopted just after the interim constitu- early hours of November 18; nineteen of tion, also was amended to extend the date for the twenty-one parties still participating in registration of political parties. Ultimately, the MPNP (the IFP and others had previ- the right-wing Freedom Front participated ously walked out) voted in favor; the left-wing in the elections. PAC and right-wing Afrikaner Volksunie Changes to the interim constitution, in- voted against.66 Party leaders signed the agree- cluding guaranteeing the position of the Zulu ment, bringing about the single most dra- king, also were made in an effort to overcome matic political and constitutional change ever the objections of the IFP, the greatest poten- experienced in South Africa, which would tial spoiler of the election process.69 While take effect on the date of the elections. the IFP sought more, on the basis of a tripar- The document that the MPNP plenary tite agreement reached among the ANC, NP, passed was not quite complete, however. The and the IFP only a few days before April 27, plenary thus instructed the negotiating coun- it finally agreed to participate in the election. cil to finalize outstanding technical issues In the end, all major political stakeholders and refer the document to the parliament for and parties took part in the elections, held on its formal passage into law. On December 22, April 27–29, 1994; only the white ultraright the debate on the interim constitution in the wing did not participate.70 The inclusiveness last white parliament completed its course. of the elections was the product of tremen- © CopyrightThe NP had firmly demanded by that thethe exist- Endowmentdous perseverance by the parties committedof ing parliament adopt the interim constitu- to a peaceful transition in their efforts to tion; this procedure represented a significant bring the more extreme elements of South theconcession United on the part ofStates the ANC, which InstituteAfrica’s polity into theof process. Peace until then had resolutely denied the legiti- macy of the organs of the apartheid regime.67 Once adopted, the Department of Consti- South Africa’s First Democratic Elections tutional Affairs and Planning initiated a South Africa’s first nonracial elections were campaign to promote the new constitution, an overwhelming success, confounding the including advertisements in a variety of me- prophets of doom. Though violence spiked dia and the distribution of booklets about before the polls—hundreds of people were the constitution. As further confirmation killed each month in politically related vio- of South Africa’s burgeoning democracy, an lence and there were several bombings in the independent electoral commission and inde- final days intended to scare people away from pendent media commission were established polling stations71—the elections themselves in January 1994 to prepare the ground for proceeded without any major incidents.72 elections. An overwhelming majority of eligible voters 126 Hassen Ebrahim and Laurel E. Miller

Table 5.1 Constitutional Assembly Election Results Party Number of seats Leader African National Congress 312 Nelson Mandela National Party 99 F.W. de Klerk Inkatha Freedom Party 48 Mangosuthu Buthelezi Freedom Front 14 Constand Viljoen Democratic Party 10 Tony Leon Pan Africanist Congress 5 Clarence Makwetu African Christian Democratic Party 2 Kenneth Meshoe Note: This table is drawn from Ebrahim, Soul of a Nation, 181. For detailed data on the results of the 1994 elections, see the Web site of the Independent Electoral Commission, http://www. elections.org.za/Elections94.asp (accessed April 25, 2009).

came out, standing patiently in long lines to interim constitution, a joint sitting of these cast their votes.73 Despite enormous logisti- parliamentary bodies made up the consti- cal problems, some occasioned by the IFP’s tutional assembly. In addition, the interim late decision to participate, as well as ordinary constitution gave parliament the function election squabbles, the Independent Electoral of choosing the president, who in turn was Commission, a new body established during required to select cabinet members from the transition process, judged the election the ranks of parliament, in accordance with substantially free and fair.74 That judgment the formula for the government of national was, of course, important to the credibility of unity described earlier. An indirectly elected the resulting constitution-making body.75 president was settled upon to avoid poten- The election handed the new leaders two tial gridlock between competing centers of separate and distinct mandates: to govern a power and to break with South Africa’s his- newly democratic society and to draft the tory of highly centralized rule, experienced final constitution. These were not entirely through colonial structures, traditional lead- ©compatible Copyright tasks, as a political leader’sby enthe- ership, Endowment and in the underground resistance. of76 gagement in one of them was often a detri- The president chosen, of course, was Nelson ment to the other. The major problem was Mandela (see Table 5.1). onethe of available United time. On theStates one hand, InstituteThe successful elections of and Peacewide accep­ political leaders were expected to establish tance of the results set the stage for the sec- a functioning democratic government, for ond phase of constitution making, to be con- which there was neither precedent in South ducted by the constitutional assembly. Africa nor experience. On the other, they were expected to engage in extended nego- The Constitutional Assembly and tiations with many different stakeholders to Creation of the Final Constitution draft the final constitution. The election produced 490 political lead- Structural Framework for Negotiations ers at the national level: 400 in the national In drafting the final constitution, the consti- assembly, elected by proportional representa- tutional assembly had to work within both tion using national and provincial candidate political and legal parameters. These shaped lists, and 90 in the Senate (ten from each of the process and determined the document’s the nine provinces). In accordance with the content. In the main, the assembly sought to Framing the State in Times of Transition 127

produce a constitution that would be both le- that the dominant party, the ANC, did not gitimate and enduring. Legitimacy was seen have enough votes to adopt the final text on to depend on the extent to which the draft- its own. ing exercise was considered credible. It was The strict deadline was imposed to ensure also seen as important that the final text be that the final constitution would be drafted as widely accepted as possible. within a reasonable period of time. To deter Three politically imperative fundamen- parties from withholding their support for tal principles guided the way in which the the new constitutional text within the tight assembly designed the final constitution- time frame, the interim constitution con- making process to ensure its credibility. First tained elaborate deadlock-breaking measures, was inclusiveness. The constitution had to including the possibility of sending a com- integrate the ideas of all the major players, pleted draft text to a referendum if the assem- including the political parties represented in bly failed to adopt it.78 Negotiators on both the assembly, organized civil society, and po- sides considered the prospect of a referendum litical parties outside the assembly, as well as undesirable, as it would signal their political individual citizens. The second principle was and personal failures to reach agreement, en- accessibility. The assembly invested a great tail an inevitably adversarial campaign, and deal of energy and resources in ensuring that possibly reopen contentious issues.79 At the the process was as open as possible. This prin- start of the assembly’s work, some raised con- ciple suggested that it was not good enough cerns that there might not be sufficient time merely to invite submissions; it was necessary to complete the task, but, because an exten- to reach out and solicit views deliberately. To sion would have required amending the in- this end, an elaborate media campaign was terim constitution, agreement was reached to devised to reach as many South Africans as complete the work within the time allocated. possible. Accessibility also was seen as relat- The use of the constitutional principles ing to both the nature of the language of the was novel. Namibia provided a precedent, text and the ability of ordinary citizens to ob- in which a set of principles determined the tain physical copies of it. The argument was parameters for drafting a new constitu- that the ordinary citizen should be able to tion, though in Namibia the principles were © Copyrightread and understand the document. by Thethe third Endowmentguidelines.80 In South Africa, they wereof bind - principle was transparency. All meetings of ing on the negotiators, and, as noted above, the assembly and its sub-bodies were open the constitutional court would assure their theto the United public, though a large States number of bilat- Instituteadherence to the principles. of Peace The principles eral and multilateral meetings took place in had emerged from the negotiating process private, with no media or public access. The as a compromise; thus, they were sufficiently closed nature of these meetings raised ob- precise to guarantee that the constitution- jections, especially from certain civil-society making body did not stray from certain fun- groups.77 damental, agreed-upon notions, but not so Several important requirements set out detailed as to preempt the work of that body. in the interim constitution helped to define The constitutional principles guided both the the process as well: a two-thirds majority for structure and the substance of the assembly’s adoption of the text, complete adoption of debates. As discussed further below, six theme the document within two years of the first committees were established to facilitate the sitting of the national assembly, and compli- assembly’s work, and these were given terms ance with the thirty-four constitutional prin- of reference based on a division of the thirty- ciples. The supermajority requirement meant four principles. 128 Hassen Ebrahim and Laurel E. Miller

The formal organizational structure used substance. The twelve-member management for the negotiation and drafting process in committee met once a week throughout the the assembly was complex. At the highest proceedings. One of its specific responsibili- level was the constitutional assembly, which, ties was to ensure that the constitutional as- as mentioned, consisted of the 490 members sembly worked according to an agreed sched- of the two houses of the parliament. These ule. While not as glamorous as the issues of members represented seven political parties political debate, timekeeping was essential in proportion to the results of the 1994 elec- for all the structures to adhere to the overall tions. Cyril Ramaphosa of the ANC served plan and meet the May 8, 1996, deadline. as chairperson of the assembly and Leon The aforementioned theme committees Wessels of the NP as deputy chairperson.81 were established to work on different parts of Within the assembly, and reporting di- the constitution82 and to ensure the involve- rectly to it, the constitutional committee ment of as many members of the assembly as was the main negotiating and coordinating possible. Each theme committee consisted of structure. It consisted of forty-four members, thirty members nominated by political par- appointed by parties on a proportional basis. ties in proportion to their representation. The committee met at first on a weekly basis However, due to the difference in numbers to receive reports from the theme committees between the largest and smallest parties, a (described below), but met less frequently bias in favor of the smaller parties was agreed after the establishment of its subcommit- upon. Each committee’s members elected tee. It continued to function, however, as the three chairpersons to ensure that no single decision-making structure. party chaired meetings of all the committees. The subcommittee of the constitutional Together with a core group of seven or eight committee was established in June 1995 members, the chairpersons were responsible to better facilitate negotiations. With Ra- for managing and coordinating the commit- maphosa as its chairperson and Wessels as tee’s work. its deputy chairperson, the subcommittee In addition to ensuring that the proved to be extremely effective and impor- constitution-making process was as inclu- tant because of its small size and ability to sive as possible of the members of the large ©meet Copyright frequently and more easily by than thethe constitutional Endowment assembly, the theme commit of- full constitutional committee. Though it was tees functioned to ensure inclusiveness in a not a decision-making forum, the subcom- broader sense. They were the assembly’s ini- mitteethe improved United the efficiency States of the- con tial Institute interface with the public of and Peace were used stitutional committee, and unlike the latter, to receive views from the public and civil so- could meet at the same time as the national ciety (discussed further below in the section assembly without affecting the quorum. At on public participation). The work of these any one time, the subcommittee consisted of committees also had the beneficial effect of about twenty members, some of these were giving politicians who had not been involved permanent members, and others were nomi- in the first phase of constitution making the nated by parties from time to time to deal equivalent of an intensive course in constitu- with specialized matters. Its membership, tional issues.83 A technical committee, con- therefore, depended on the issue at hand. sisting of three or four experts in particular The constitutional assembly also -estab fields, supported each theme committee, and lished a management committee to deal some theme committees were assigned addi- with the day-to-day management of the ne- tional technical advisers to deal with special- gotiations and matters of process rather than ized matters, such as local government, self- Framing the State in Times of Transition 129

determination, and the role of traditional wingers to participate in the 1994 elections leaders. Some committee members also par- and seek to advance their interests within the ticipated in workshops with international framework of the constitution.87 The council experts, though this was not a major feature. gathered information and reported to both To illustrate the nature of the theme com- the constitutional assembly and the commis- mittees’ work, Theme Committee 1, which sion on provincial government. In short, the dealt with the character of the democratic volkstaat council was principally a mechanism state, held fifty-six meetings from September to ensure the greatest possible consensus and 19, 1994, to September 11, 1995, and pro- inclusiveness; it provided a back door to par- cessed 3,000 submissions from the public. It ticipation for the right wing and served as a held six orientation workshops to facilitate face-saving device. the preparation of submissions. And it held public hearings on the seat of government, languages, names and symbols, the secular Negotiating and Drafting the Final Constitution state, equality and affirmative action, and the At the outset, the constitutional committee character of the state.84 Overall, the theme settled on a work program that envisaged committees began producing reports in Feb- three broad phases. The first phase would ruary 1995 and tabled their final reports, ac- involve a public participation program and companied by draft constitutional texts, in the development of a draft text. The second September 1995. phase would include the publication of the In addition to the various committees just first draft and further solicitation of public described, three other structures established comment. In the third phase, the constitu- in accordance with the requirements of the tional assembly would finally negotiate and interim constitution supported the constitu- adopt the constitution. tional assembly’s work. First was an indepen- During the first phase, the assembly strug- dent panel of constitutional experts, which gled with the question of how much detail advised the constitutional assembly through to include in the constitution. The invitation its chairperson.85 The panel, composed of to the public to submit comments and ideas two practicing and five academic lawyers, elicited a wish list of provisions to include in © Copyrightalso had a deadlock-breaking by function the un- Endowmentthe text. Smaller political parties andof lobby der the terms of the interim constitution, but groups as well as the broader public were was not called upon to perform this role.86 naturally inclined to seek to secure particular theSecond United was a commission States on provincial gov- Instituteinterests by addressing of them Peace in the constitu- ernment, the main task of which was to help tion. The technical committees organized all formulate new arrangements for provincial the submissions and prepared reports based government. This commission also advised on them for consideration by the theme com- the constitutional assembly on provisions in mittees, which, in turn, produced reports for the new constitution regarding boundaries, the constitutional committee reflecting the structures, powers, functions, and transitional major trends in the submissions and whether measures for the provinces. they demonstrated consensus or considerable Finally, a volkstaat council was established differences of opinion. Often these reports to enable proponents of the idea of a volkstaat were supported by a set of draft formulations, (that is, an Afrikaner homeland) to pursue but invariably, the reports begged the ques- this option constitutionally. The provision in tion of how much detail should be included. the interim constitution calling for the council To address the question, the chairperson was a compromise that helped convince right- of the constitutional assembly asked the in- 130 Hassen Ebrahim and Laurel E. Miller

dependent panel of constitutional experts tion of the working draft in December; re- to draft a document setting out criteria that vised drafts were then produced at regular should be applied when considering issues intervals to reflect the latest agreements. for inclusion in the constitution. Nevertheless, While the second broad phase of the work the debates in the theme committees were re- program—the solicitation of comment on peated in the constitutional committee, often the Refined Working Draft—proceeded, the without any progress. The sometimes cum- subcommittee of the constitutional commit- bersome and redundant proceedings were tee continued to negotiate outstanding issues. part of the price that had to be paid for try- As would occur at critical junctures through- ing to involve as many of the 490 members out the negotiations (as intermediate dead- of the assembly as possible in negotiating the lines approached, or as stumbling blocks were constitutional text. Regardless, however, at reached), the parties engaged in bilateral and this early stage, parties were not yet ready to multilateral meetings behind closed doors make the necessary compromises. to seek agreement on a next edition of the As these debates progressed, the manage- draft. While the parties themselves privately ment committee appointed a team of experts, arranged the bilateral meetings, multilateral including law advisers, language experts, and meetings among parties were facilitated by the members of the panel of constitutional the constitutional assembly’s administration. experts, to prepare the first working draft of These meetings held behind closed doors did the constitution. The draft was essentially to not sit well with members of civil society or serve as a report on how the constitutional the media, but they were important vehicles assembly had addressed the submissions for enabling the parties to make compromises made, and the format was intended to draw gracefully without appearing publicly to have attention to areas that remained contentious betrayed their constituencies. The meetings or were outstanding. This document, referred also allowed for very frank discussions with- to as the Refined Working Draft, was pro- out negotiators having to make statements duced for discussion by the constitutional purely for the media’s benefit. committee in October 1995. It provided the The major issues requiring resolution at first glimpse of what the final text might this stage related to the bill of rights, the ©look Copyrightlike and clearly set out the agendaby forthe council Endowment of provinces, national and provincial of further negotiation. After a year of meeting competencies, courts and the administration to consider different views and submissions, of justice, and local government. By mid- politicalthe parties United were sufficiently States primed and March Institute 1996, there were deadlocks of Peace on five is- ready to plunge into closing negotiations. The sues: the death penalty, whether the right to constitutional committee addressed a vast strike should be balanced by a right to lock- number of issues and reached many agree- out, the right to education in single-language ments at this stage, reflected in the version schools, the appointment of judges, and the of the draft that was ultimately published in appointment of the attorney general. Fifty- November 1995. To solicit a second round of four further issues remained in contention, public comment, more than 4.5 million cop- and twenty-five matters required technical ies of the draft were distributed in tabloid attention. form throughout the country. Meanwhile, Rounding out the second phase, the con- guided by the discussions of the constitu- stitutional assembly produced a further edi- tional committee, and after further research tion (the fourth) of the working draft on (including some consultation with foreign March 20, 1996, which contained a detailed experts), the drafters prepared a further edi- study of the submissions made in response Framing the State in Times of Transition 131

to the publication of the Refined Working produced, together with the first draft of Draft. This document included endnotes in- transitional arrangements, by the middle of tended to facilitate consideration of the pub- April 1996. At this point, the negotiation lic submissions. The fourth edition of the process intensified as pressure mounted on text was published in limited quantities and the parliament. Despite a full regular legisla- distributed to those who had made submis- tive agenda, it was agreed that the work of sions. In part, the publication was an attempt the constitutional assembly would take pri- to prove that the assembly was giving due ority, and a hectic series of bilateral, multi- consideration to the views of the public. lateral, and subcommittee meetings ensued. In the third phase of the work program, Party caucuses and meetings of the policy- during March 1996, it became clear that it making structures were regularly convened to would be extremely difficult to adopt the renew or obtain fresh negotiating mandates. constitution by the May 8 deadline. To ex- Generally, meetings took place at all hours, pedite the process, the negotiators accepted even stretching late into the night. During a proposal mooted by the assembly’s admin- this period, the Ramaphosa and Meyer–led istration to hold a multilateral meeting in an “channel bilateral” was resumed as well. isolated area over several days. This would Mixed into the intense activity was a great allow parties, with the benefit of experts being deal of lobbying by interest groups, particu- present, to hold intensive negotiations with- larly those of business and labor. Adding out the disruptions occasioned by remaining to the pressure on the side of labor, thou- in close proximity to their work environ- sands of workers marched to support their ments. The meeting, held in Arniston at the demands. Consultations were held with the beginning of April 1996, proved extremely Congress of Traditional Leaders as well re- successful, as most of the outstanding issues garding their concerns about the treatment were resolved. Important issues remained of their authority and of customary law in in contention, however, including the death the new constitution. penalty, education, and lockout provisions; By April 18, negotiators entered the final formulations on the preamble and local gov- stretch. In a marathon meeting of the consti- ernment were still in progress as well. Never- tutional committee that started that day, the © Copyrighttheless, for the first time, negotiatorsby the began Endowmentbasic text of the constitution was agreed of upon. to see the light at the end of the tunnel. This meeting heralded some of the most dra- As it turned out, the issues on which the matic breakthroughs in all the negotiations, theparties United were deadlocked provedStates to be serious Instituteincluding agreement ofamong Peace the ANC, NP, enough to throw into question the adoption and right-wing Freedom Front that the new of the final constitution by general consensus, constitution would feature a commission to as the NP and Democratic Party felt strongly promote and protect the rights of cultural, enough about them to consider voting religious, and language groups. In addition, against the entire constitution. Most extraor- a clause was added acknowledging the prin- dinary, however, was that none of the major ciple of collective rights for cultural, religious, political debates that had raged among par- and linguistic communities. This was vitally ties for several years—namely, the question important to bringing the right-wing con- of a government of national unity, whether to stituency on board. Major issues unresolved establish a senate, and national and provincial at Arniston remained unresolved,89 but the competences—were among these issues.88 text was rapidly polished with respect to all Based on the progress achieved at Arnis- agreed matters and published in bill form on ton, a fifth edition of the working draft was April 22. 132 Hassen Ebrahim and Laurel E. Miller

A milestone in the process was reached low. Delegations of labor and business lead- on April 23, when the draft constitution was ers joined the talks, and significant agree- tabled in the constitutional assembly and a ments in principle on some issues, including two-day plenary debate began. In tabling the lockout clause, were reached, though the the draft, assembly chairperson Ramaphosa parties remained deadlocked on the property observed that the country had come a long clause. way since 1909, when the first Union con- As the May 8 deadline loomed, the inten- stitution was passed in the British House of sification of the negotiation process began Commons; in his opinion, the new constitu- to take its toll. After mid-April, negotiators tion would be the birth certificate of the new found themselves involved in a hectic round South African nation. of bilateral talks, subcommittee meetings, ex- The procedures at this stage focused on tensive consultations, and continuous report- amendments to the constitution bill tabled ing to policymaking bodies of their parties. by parties in the plenary. The constitutional Signs of physical strain and stress emerged. committee began meeting on April 25 to The smaller parties were particularly dis- consider 298 proposed amendments tabled advantaged, as they did not have sufficient by various parties, including twenty-eight members to field in the various meetings or that were jointly tabled by the ANC and to engage other parties in lobbying for sup- NP, reflecting agreements reached between port. Thus, they often found themselves led them. In the main, the amendments were of by agreements between the ANC and NP. a technical nature; others were no more than Despite some irritation this dynamic pro- a restatement of well-known party positions duced, and even though it was necessary ulti- that had been asserted in the previous two mately to arrive at agreements multilaterally, years. The constitutional committee agreed to the important deadlocks were, in fact, essen- move the debate on amendments into various tially between the two largest parties. subcommittees, but unfortunately, even the By May 1, the constitution-making pro- subcommittees failed to make much prog- cess was effectively into overtime. The delay ress on the unresolved issues and the parties in finalizing the text was beginning to cause remained deadlocked. Ultimately, the formal significant problems for the administration ©public Copyright procedures in the constitutional by com the- and Endowmentdrafters. For example, language experts of mittee were insufficient on their own to over- were recruited from different parts of the come the final obstacles, though the commit- country to carry out the translations in the teethe and its Unitedsubcommittees continued States to meet hope Institute that the final text wouldof bePeace presented to resolve the issues that they could and to to the constitutional assembly for adoption in record progress in the negotiations overall. all eleven official languages, but the continu- Bilateral discussions between the ANC and ous amendments completely frustrated their NP were critical from this point to the end efforts. As time ran short with no agreement of the process, as the parties worked to bridge in sight on deadlocked issues,90 the tension their outstanding differences. For example, reached a fever pitch. an important series of deadlock-breaking Though consensus remained the goal, as meetings took place on Sunday, April 28, the constitutional committee completed its when President Mandela and de Klerk met work, the ANC found it necessary to assert at Mandela’s official residence in Pretoria. itself as the majority party to determine for- Overshadowing these particular side talks mulations on the final issues, and its - pref was a threat of a national strike on April 30, erences prevailed on several points. Thus an and the fact that the rand was at an all-time amended constitutional bill was drafted by Framing the State in Times of Transition 133

May 4. It was still not clear, however, how adopting the constitution was confirmed, the political parties would vote on the text, and the constitutional assembly went on by as not all provisions of the draft were fully a vote of 87 percent in favor92 to adopt the agreed. Bilateral meetings continued over the resolution containing amendments reflecting next two days to iron out differences, and on the final agreements. Around 11:00 a.m. on Monday, May 6, the constitutional assembly May 8, the new constitution was adopted. sat in plenary to debate the amended bill. The opening of the final plenary irrevers- ibly set in motion a process that would oblige The Public Participation Process parties to either adopt the text or allow the One of the most distinguishing—and from deadlock-breaking mechanisms to come into a comparative constitutionalist perspective, effect. As noted earlier, these included the precedent-setting—aspects of the South possibility of the independent panel of con- African process was the intensive effort the stitutional experts taking thirty days to de- constitution makers made to solicit and re- velop compromise formulations to which the flect on a wide range of citizens’ views about parties might agree, and the possibility of re- the document being produced. A guiding sorting to a referendum on the draft text.91 principle, upheld throughout the drafting The implications of the latter, which would process, was that the development of a new jettison the process of multiparty constitu- constitution must involve the greatest pos- tion writing and thus jeopardize the compro- sible number of South Africans representing mises that had been reached, were a source of the broadest possible range of views. This ap- considerable concern to the negotiators. proach was intended to give real effect to the Both the plenary session and bilateral notion of participatory democracy. Though meetings continued through May 7, inter- the constitutional assembly’s mandate en- spersed with meetings of the constitutional titled it to draft the final constitution on its committee to consider new amendments; an own, its members believed that broader in- eleventh-hour modification of the assembly’s volvement was needed to ensure the popular rules was needed to allow further amendment legitimacy of the outcome. procedures. When the committee members One of the assembly’s stated objectives © Copyrightassembled at 10:45 p.m. that by day, an theincred- Endowmentwas to make the constitution-making of pro- ible air of excitement ran through the room. cess transparent, open, and credible.93 More- By this time, many of the assembly members over, the final constitution had to enjoy the thewho wereUnited attending the plenaryStates debate had Instituteenduring support ofof all SouthPeace Africans, squeezed into the old assembly chamber to regardless of ideological differences. Cred- hear the parties report on the outcome of the ibility was an important aim for a document bilateral discussions. Though reluctantly in born out of a history of political conflict and some cases, final compromises were reached mistrust. Achieving that aim was thought to on the right to education in languages of depend on a process through which people choice, the exclusion of a constitutional right could claim ownership of the constitution. to lockout, the nature of the right to collec- Not only did the South African people have tive bargaining, the property clause (balanc- to feel a part of the process, but the content ing land reform with property rights), and of the final constitution had to represent several more minor matters. At 11:30 p.m., their views. In addition, the process had to the committee adjourned to allow the con- be seen to be transparent and open. stitutional assembly to complete its debate. The assembly’s main challenge was to find Several hours later, sufficient support for ways to enter into effective dialogue and 134 Hassen Ebrahim and Laurel E. Miller

consultation with a population of more than dilemma of whether to consult the public forty million people. South Africa had a large before a draft is prepared, at which point the rural population, most of which was illiterate solicitation of input may be, and may be per- and without access to print or electronic me- ceived to be, wide open, or whether to consult dia. Moreover, South Africa had never had a after preparation of a draft, at which point culture of constitutionalism or human rights, the range of solicited input may be more con- which made it difficult to consult with peo- strained but also more constructively focused. ple who did not recognize the importance of The first phase, which ran from Janu- a constitution. Meeting this challenge thus ary to November 1995, involved a wide vari- had to include raising awareness to empower ety of means to communicate and interact people to be able to participate meaningfully with the general public and organized in­ in the process. terest groups. To create awareness of the The timing of the public participation ­constitution-making process and consti- program heightened the challenge. First, the tutional issues, and to stimulate public in- time available for the project was short. It terest in participation, a media campaign was not until the second quarter of 1995— was launched in January 1995. As part of well into the constitutional negotiations— the outreach strategy, a national advertising that the full complement of necessary staff campaign included messages such as “you’ve was in place to implement the program. made your mark”—a reference to voting in Second, the constitutional drafting exercise the 1994 elections—“now have your say,” and followed closely after South Africa’s “libera- “it’s your right to decide your constitutional tion” election. Therefore, the program of pub- rights.” Advertisements were run on televi- lic participation had to compete for public sion, on radio, in local newspapers, and on attention with the broader process of trans- outdoor billboards. The constitutional assem- formation. In particular, the program over- bly commissioned a national survey to assess lapped with two local government elections the penetration and impact of this media and various government campaigns aimed at campaign as well as ascertain public attitudes involving communities in reconstruction and on key constitutional issues.94 The results re- development programs. In addition, it was vealed that the assembly’s media campaign ©difficult Copyright to make clear to the generalby publicthe reached Endowment 65 percent of all adult South Afriof- the distinction between, on the one hand, cans in the three months between January 15 constitutional dialogue, and on the other and April 19, 1995. However, the survey also hand,the articulation United of growing States demands on revealed Institute that the public was of clearly Peace skeptical government for delivery of basic services and about the seriousness of the assembly in call- other results promised in elections. ing for their involvement and the treatment The participation program was conducted their submissions would receive. The cred- at two stages in the process. The first oc- ibility of the process obviously needed some curred during the negotiations leading up attention. In addition, the survey made clear to the constitutional assembly’s production that the public still needed education about of the Refined Working Draft. The second the nature and function of a constitution, as followed and was focused on that draft. well as information about the assembly and Public education about constitutions and the constitution-making process. the ­constitution-making process was an To communicate with the public through- integral—and simultaneously undertaken— out the entire constitution-making pro- element of both phases of public participa- cess—in other words, not limited to the two tion. This two-stage process avoided the usual phases of the public participation program, Framing the State in Times of Transition 135

but overlapping with them—the constitu- database of information containing minutes, tional assembly also employed a newsletter, drafts, opinions, and submissions. More than and television and radio programs, all bear- 6,600 users from forty-six countries accessed ing the title Constitutional Talk; a telephone the site during the period from January 1 to talk line; and an Internet Web site. The news- April 17, 1996. letter, usually published every two weeks To engage the public directly in the pro- in an eight-page format, provided detailed cess in the first phase of the participation information about the constitution-making program, the constitutional assembly so- process. One hundred thousand copies were licited submissions and held public meet- distributed through taxi ranks, and another ings, participatory workshops, and public 60,000 were sent to subscribers. A series of hearings. These procedures were publicized twenty-five television programs ran from through the public outreach mechanisms de­ April to October 1995, and a series of twelve scribed above. Between February and August ran from February to May 1996. The for- 1995, twenty-six public meetings were held mat allowed representatives of civil-society in all nine provinces, focused mostly on rural groups to engage a multiparty panel of as- and disadvantaged communities, which had sembly members on topics including the bill limited access to other means of following of rights, separation of powers, the national the process. The meetings involved a total of anthem and flag, freedom of expression, tra- more than 200 assembly members in face-to- ditional authorities, and the death penalty. face interactions with the public. The meet- Radio was a particularly effective infor- ings served two functions: Political actors in mation delivery mechanism because it could the assembly reported on various issues in reach large numbers of people in both rural the negotiations, and members of the pub- and urban areas. In collaboration with the lic were invited to voice their views on those South African Broadcasting Corporation’s issues. Each oral submission of views was (SABC) educational directorate, the consti- recorded and transcribed for consideration tutional assembly launched a weekly radio by the structures within the assembly. Public talk show in October 1995. The hour-long meetings were preceded by smaller partici- programs were broadcast on eight SABC patory workshops with an educational orien- © Copyrightstations in eight languages, by with constituthe- Endowmenttation, mostly involving non-governmental of tional experts appearing as studio guests. organization (NGO) and other civil-society These programs reached over ten million representatives, to equip participants to con- theSouth United Africans each week. States Institutetribute substantively ofto the publicPeace meetings. The constitutional talk line enabled peo- In all, 20,549 people and representatives of ple with access to a telephone to obtain a 717 civil-society organizations attended the briefing on political discussions and to leave public meetings. messages requesting information or to record For most participants, the meetings were comments. The service was available in several the first occasion on which they could- in languages. While over 10,000 callers used the teract directly with their elected representa- talk line, the effectiveness of this mechanism tives. More important, this was the first time was limited. With insufficient time to prepare in South Africa that public events were held for the talk line’s use, the system to update involving politicians who were previously at information and monitor responses was not war with one another, talking jointly to the very efficient. The assembly’s Web site, estab- people. The meetings were extremely suc- lished in conjunction with the University of cessful: Discussions were lively, ideas origi- Cape Town, which maintained it, included a nal, and the exchange of views appreciated. 136 Hassen Ebrahim and Laurel E. Miller

In addition to the public meetings, a sampling of the public’s views, the numbers national-sector public hearing program was are significant and reveal a serious effort to conducted to enable the theme committees involve the public. (discussed above) to consult civil-society The success of the effort to solicit public groups on particular issues, such as certain input can be seen in the number of submis- rights to be included in the bill of rights. In sions made: Close to two million were re- an effort to ensure broad representation at ceived. The bulk of these were signatures on the hearings, the assembly sought to prepare petitions promoted by various civil-society for the hearings in partnership with civil- structures, however, rather than original writ- ­society organizations. The partnership was ten submissions presenting individuals’ views, not entirely successful, however, as few orga- though the latter also arrived in large num- nizations—with the notable exception of the bers. The petitions dealt with a wide variety, trade union movement—made a concerted though limited number, of issues, among effort to draw their members into -discus them language rights, animal rights, abortion, sions about the constitution-making process. the death penalty, and the location of the seat Most of the hearings took place within four of parliament.96 Of the submissions received, weeks during May and June 1995. Despite just over 11,000 were substantive rather than the limited time available for this element of petitions. The substantive submissions ranged the participation program, 596 organizations in length from a few handwritten lines to were consulted. In addition, theme commit- printed reports over 100 pages long.97 These tees hosted many seminars and workshops, were often wide-ranging wish lists that ar- at which expert opinion was sought on par- rived at an early stage in the process, when ticular issues. Many of these workshops in- the political parties were still developing cluded international experts. their thinking on many issues. Many people Numerical data indicates the huge scale of discussed issues that confronted them in ev- the assembly’s effort to engage the public in eryday life, such as spousal abuse or problems the first phase of consultation, as well as the with cattle.98 In whatever form, though, the swell of popular interest in participation. Al- submissions reflected the views of a large together, this phase of the public participa- number of people. ©tion programCopyright involved direct interaction by with the TheEndowment overwhelming number of submisof- 117,184 people; 807 public events; regular li- sions made in the first phase led to concern, aison with 1,588 civil-society organizations; especially among civil-society organizations, twenty-sixthe United public meetings, whichStates 20,549 about Institute whether the views expressedof Peace would be people attended and in which 717 organiza- seriously considered.99 There was some doubt tions were represented; thirteen public hear- on this score among the public at large as ings involving 1,508 representatives from 596 well.100 As a result of this concern, civil so- organizations; 486 constitutional education– ciety sustained pressure for openness in the oriented participatory workshops preceding constitutional assembly to the end of the public meetings; and 259 briefings by poli- constitution-making process. ticians reporting to their constituencies on In hindsight, the figures regarding the progress in the constitution-making process. extent of participation obscure both the “vi- In terms of percentages of South Africans, tality and energy of the public participation the participation numbers are not huge—a program” as well as the fact that the program’s survey indicated that only 13 percent of the goals and “concrete results” were not entirely population was even aware that meetings on clear.101 Some critics argued that the program the constitution had taken place95—but as a was designed to hide the reality that like the Framing the State in Times of Transition 137

interim constitution, the final constitution public education effort in this phase utilized would be a negotiated document. The huge posters, the Constitutional Talk newsletter, a number of submissions—too many to be booklet titled You and Building the New Con- reviewed by any of the politicians—and the stitution, and a pamphlet titled Constitutions, vagueness of many of them appear to sup- Democracy, and a Summary of the Working port the critics to some extent.102 However, Draft to provide information about constitu- such criticisms miss the fundamental signifi- tions and the constitution-making process. cance of the submissions as responses to the A supporting media campaign was first invitation that many previously disen- launched with the publication of the work- franchised people had received to voice their ing draft and ran through the period of pub- aspirations. Even vague requests to address lic debate to February 20, 1996. Through this poverty represented expressions of a desire campaign, the public was invited to make fur- for the constitution to ensure a better future. ther submissions and was asked to comment As Christina Murray, a member of the panel specifically on the provisions of the draft. of constitutional experts, has pointed out, the As a result, the 250,000 submissions received participation program had broader, less in- in the second phase were much more focused strumental goals than providing a list of mat- than those received in the first phase, though ters that should be included in the document, the vast bulk were again ordinary petitions such as fostering a sense of ownership of the rather than substantive submissions. The pe- new constitution by all South Africans, and titions dealt with many of the same issues as facilitating communication between politi- they did in the first phase—the death penalty, cians and the citizens they represented.103 sexual orientation, and animal rights, in par- The second phase of public participation, ticular. Some of the submissions expressed which ran from November 1995 to Febru- skepticism about the assembly’s invitation ary 1996, centered on the Refined Working to the public for written comments, wonder- Draft, a complete set of textual formulations ing whether the politicians would take them produced at the end of the theme commit- seriously. tees’ work. The draft provided alternative op- After considering the views contained in tions for contentious formulations, as well as the submissions,104 the assembly produced a © Copyrightsupporting notes explaining theby options, the and Endowmentfurther edition of the working draft. of This edi- was effectively a progress report on the ne- tion recorded where the submissions came gotiation of the final constitution. It also re- from and the formulations that were affected, theflected United the ways in which States the ideas and sub- Instituteas well as reports by theof experts Peace who had pro- missions put forward during the first phase cessed the submissions. A copy of this new of public consultation were addressed. draft was sent to each person or party that Over four and a half million copies of the had made a submission. working draft, printed in user-friendly tab- The participation program was not with- loid form, were distributed throughout the out practical imperfections. For example, in country on November 22, 1995. The distri- distributing the copies of the revised work- bution means included newspaper inserts, ing draft to those who had made submissions door-to-door delivery, and supply of copies in the second phase, many complained that to taxi kiosks at major centers. A survey con- they did not make any submissions and could ducted a couple of months after the draft was not understand why they had been identified released found that, by then, 8 percent of all as having done so. Upon investigation, it be- South African adults had seen the document, came apparent that a number of submissions while 5 percent had read some or all of it. The had been sent under names from the con- 138 Hassen Ebrahim and Laurel E. Miller

gregation lists of churches. In addition, some After the second phase of the public par- schoolteachers encouraged students to make ticipation program came the period, dis- submissions by dictating one to them. cussed earlier in this chapter, in which the The degree to which the text was modi- issues threatening deadlock began to crystal- fied solely in response to public submissions lize. This development constrained the open- is difficult to measure, as the issues that were ness of the process. To facilitate resolving the the subject of popular debate were generally contentious issues, parties held various bilat- the same as those pursued by the contesting eral and multilateral meetings behind closed political parties, and the views of the parties doors, which did not sit well with the media and elements of the public often coincided. or civil society. Consultations with affected Some submissions from civil society did di- interest groups during this period were lim- rectly affect the text, including the constitu- ited to areas of deadlock only, and when these tion’s recognition of religious personal law, as consultations took place, they occurred with well as its recognition of certain languages very little time to plan or prepare. The assem- such as Gujarati. But ultimately, the textual bly had prided itself throughout on excellent formulations were in the hands of the elected relationships with civil-society groups. How- officials who were legitimately mandated to ever, several of these saw themselves as being negotiate the final constitution.105 outside the process, particularly when politi- Nevertheless, the consultation program had cal parties found it necessary to hold closed a strong effect on the public’s perception of bilateral or multilateral meetings.107 being included in the constitution making. The assembly continued its public outreach Survey data revealed that within one year effort even after adopting the final constitu- of the process of public participation, just tion. In keeping with the assembly’s focus less than half (48 percent) of all adult South on the educational aspect of its communi- Africans felt part of the assembly’s process, cations with the public, as well as with the while just over a quarter (28 percent) did not. principle of accessibility, the final project the Notably, positive feeling about the assembly assembly carried out was to distribute seven process was expressed nearly evenly across million copies of the final constitution in all formal metropolitan areas (48 percent) and eleven official languages. This took place dur- ©formal Copyright urban areas (49 percent), by106 as wellthe ing theEndowment week of March 17–21, 1997, whichof as more disadvantaged areas, including ru- was dubbed national constitution week. The ral areas (46 percent) and informal metro- project was intended to help ensure that the politanthe and United urban areas, such asStates shantytowns constitution Institute would become of a reference Peace point (43 percent). The legacy of these perceptions for all South Africans, to create a sense of can be seen in the South African experience ownership of the document, and to engender since the adoption of the constitution. In that enduring respect for it. period, there have been no political or legal The distribution strategy for this final challenges to the legitimacy of the constitu- project emphasized accessibility, particularly tion. Though public political debate may be for historically disadvantaged sectors of so- vigorous, it has not encroached on the fun- ciety. Four million copies were distributed to damental tenets and principles set out in the secondary schools; two million were made constitutional framework. The inclusiveness, available at post offices countrywide; 500,000 legitimacy, and ownership engendered by the were distributed to all members of the South public participation program can be credited African police service and national defense for this. force, as well as all members of the Depart- Framing the State in Times of Transition 139

ment of Correctional Services and prisoners; interim constitution, even though the nego- and 500,000 were distributed through civil- tiations themselves involved rather undemo- society organizations. Each copy of the con- cratic elite bargaining. Mass action, demon- stitution was accompanied by an illustrated strations, and petitions supported the efforts guide in the same language, highlighting key of the ANC and its allies to shape the tran- aspects of the document and explaining many sition, and “various forms of public display of the legal concepts. Other related publica- of claims, outrage, and strength continued tions included one million copies of a hu- to be employed by groups on all sides, try- man rights comic, which was distributed to ing to ensure that their concerns or demands all schools and adult literacy organizations, be placed on the agenda at the multiparty and a teacher’s aid to introduce the constitu- talks.”111 The interim constitution ultimately tion to students, which was provided to all accommodated many of these claims.112 secondary schools. In addition, taped and Braille versions of the constitution and guide were available for visually impaired persons. Special Role of the Constitutional Court Given its scale and publicity, the assembly’s As noted earlier, the agreement during the public participation program understandably multiparty negotiations to give the consti- has been the principal focus of attention by tutional court—a new body established dur- those considering the role of participation in ing the transition—the role of certifying the the South African constitution-making pro- constitution was a compromise essential for cess. But other types of outreach occurred at reaching the goal of a consensus-based set- earlier stages of negotiation as well. In partic- tlement.113 The specific task handed to the ular, though consultation with key members court was to certify that the text adopted by is not unusual for political parties engaged the constitutional assembly complied in all in negotiations,108 the ANC at times sought respects with the constitutional principles. In wide-ranging involvement by its constit­- other words, the court in effect had to deter- uency in developing its constitutional propos- mine the constitutionality of the new consti- als. For example, in 1990, during the period tution.114 The interim constitution that both of talks about talks, the ANC’s constitutional incorporated the constitutional principles and © Copyrightcommittee launched a public by debate theon the Endowmentestablished the constitutional court of gave the party’s constitutional proposals and proposed court absolute discretion in interpreting the bill of rights. Between 1990 and 1993, the principles and deciding on the validity of thecommittee United held a series ofStates about ten broadly Institutethe final text: “A decisionof Peace of the Constitu- inclusive conferences to discuss the proposals tional Court . . . certifying that the provisions in detail in a format that invited participa- of the new constitutional text comply with tion. Participants included ANC and Com- the Constitutional Principles, shall be final munist Party members, trade union activists, and binding, and no Court of law shall have NGO and community-based organization jurisdiction to enquire into or pronounce representatives, and foreign and local aca- upon the validity of such text or any provi- demics.109 This mediated form of participa- sion thereof.”115 Compared with most other tion was important to bringing ideas into the constitution-making processes, in which ei- process.110 ther a popular referendum or the vote of an In addition, a wholly different type of par- elected body constitutes the final validating ticipation—or at least popular influence— act of a new constitution (an executive sig- was evident during the negotiation of the nature may be required as well), the South 140 Hassen Ebrahim and Laurel E. Miller

African process, which substituted judicial it decided, the court risked jeopardizing the affirmation of compliance with a political credibility it had established as well as pub- agreement for final democratic authoriza- lic acceptance of the outcome.120 The stakes tion, was unusual. Indeed, using a judi- were extremely high. cial body for such a purpose appears to be To the court’s credit, the process adopted unprecedented.116 in the directions issued by the judge presi- The court that undertook this role was dent assured openness and transparency.121 “different from any other South Africa had The directions allowed about six weeks for seen,” with members chosen through a trans- submitting written arguments, to be fol- parent process intended to reflect the ideals lowed by oral arguments commencing on of the new democracy, and with regard to July 1, 1996. They provided for written argu- the interim constitution’s prescription that ment on behalf of the constitutional assem- the court be representative in terms of race bly to be lodged with the court and invited and gender.117 In accordance with the in- the political parties represented in the as- terim constitution, the court’s president, Ar- sembly to present written grounds of objec- thur Chaskalson, was chosen directly by the tion and oral argument if they wished. The president of South Africa; four judges were directions also invited any other body or per- drawn from the existing judiciary; and six son wishing to oppose certification to sub- more were chosen after being publicly in- mit a written objection. With the help of the terviewed by a new judicial service commis- constitutional assembly, the court published sion, subject to the president’s final decision. notices in all official languages inviting -ob The resulting bench was still overwhelmingly jections and explaining the procedure. Ob- male and white, yet it was the most mixed jectors were required to specify the grounds court then sitting in the country.118 In politi- of objection and indicate the constitutional cal terms, the court was not as broad-based as principles allegedly contravened. The court the government of national unity; from the then invited detailed written argument with start of the selection process, it was clear that respect to those objections that raised new no candidate whose “background was in any issues germane to the certification. way touched by too close an association with Five political parties tabled objections to ©apartheid Copyright or discredited views or institutionsby the certification: Endowment the African Christian of -Demo would be seriously considered.”119 cratic Party, the Democratic Party, the IFP The constitutional court was intent on (joined by KwaZulu/Natal province), the NP, dealingthe with United the certification Statesprocess expe- and Institute the Conservative Party. of Eighty-four Peace pri- ditiously and also on ensuring that the pro- vate parties lodged objections as well.122 The cess of testing the adopted text was handled assembly, the political parties, and twenty- in the same open manner as the drafting. It seven of the private parties were afforded a was, however, in a difficult position, as the right to present oral arguments. In the court’s constitutional principles were essentially po- words, “in deciding whom to invite to pre­ litical agreements among parties bringing an sent oral argument, we were guided by the end to conflict. To make matters worse, a fair nature, novelty, cogency and importance of number of the thirty-four principles could the points raised in the written submis- be interpreted in various ways. Moreover, the sions. . . . The underlying principle was to court had to undertake its task against the hear the widest possible spectrum of poten- background of the text already having been tially relevant views.”123 The court’s hearings, adopted by an overwhelming majority of a which ran from July 1 to July 11, were open democratically elected body. Whichever way to the press and public and were summarized Framing the State in Times of Transition 141

each day on television, together with visual establishing perspectives and fundamental footage of the proceedings.124 interpretations. So we were reluctant to go The novelty and the burden of the court’s beyond the absolute minimum necessary to task were at times apparent in the course answer the questions that were asked.”129 of the proceedings. According to one first- The judgment did not spark any contro- hand observer, “during the hearing, the versy; instead, it was hailed as a victory for judges occasionally gave the impression of constitutional democracy. The court’s ability being uncertain about the role in which they to assert itself in this manner, barely eighteen had been cast. Their questions about the ap- months after it had heard its first case, in- proach they should adopt, the nature of the dicates that most political actors during the task they were carrying out, and the extent of transition period had come to accept consti- their latitude to check the will of the Con- tutional supremacy, the rule of law, and the stitutional Assembly combined to convey a subordination of parliamentary sovereignty sense of the stress under which they were to the principles of a constitutional state.130 working.”125 One of the judges, Albie Sachs, The court’s decision to invite the general later commented on the complexity of the public, rather than just the political parties, issues presented to the court, which included to participate in the certification process may “the entire ground of what a constitution partly explain the widespread support for is, what it can be, what it ought to be, what the outcome.131 Also, during the life span of international practice is, what the principles the interim constitution, South Africans had require, and how to interpret this text of over begun to take for granted constitutional de- two hundred articles that comprised the new mocracy in general and the institutional role constitution.”126 of the constitutional court in particular.132 Two months after the hearing, the court Ironically, the return of the text presented delivered its judgment. The judges found the constitutional assembly with some valu- that the text adopted on May 8 did not com- able opportunities: Principally, it was pos- ply with the constitutional principles in nine sible to attempt once again to bring the IFP respects.127 The court was mindful, however, on board. One of the more serious flaws the not to cast too dark a shadow on the text. The court found in the adopted text was that the © Copyrightjudgment concluded with twoby observations: the Endowmentpowers of the provinces were substantially of “The first is to reiterate that the Constitu- reduced compared with those in the interim tional Assembly has drafted a constitutional constitution; this was an issue of particular thetext whichUnited complies with Statesthe overwhelming Instituteinterest to the regionally of basedPeace IFP. In ad- majority of the requirements of the Consti- dition, the drafters had a chance to clean up tutional Principles. The second is that the the text, as continual amendment of the doc- instances of non-compliance which we have ument during the pressure-filled two weeks listed . . . although singly and collectively im- preceding May 8 had introduced a number portant, should present no significant obsta- of inconsistencies. cle to the formulation of a text which com- Within days of the court’s judgment, the plies fully with those requirements.”128 The assembly’s management committee met to court deliberately said as little as possible in decide on a way forward. The committee its judgment. According to Sachs, the judges members sensed that it was necessary to fi- were “very aware of the fact that our decisions nalize the constitution as soon as possible would be binding in the future, and that here to allow assembly members to redirect their we were, most unusually, interpreting a con- time to the crucial demands of governance stitution from beginning to end and already and transformation. The management com- 142 Hassen Ebrahim and Laurel E. Miller

mittee therefore agreed that the constitu- ment exercise, the IFP for the last time tional committee should be convened to ne- abruptly withdrew its participation. gotiate the amendments and table its report The constitutional committee approved with the assembly for adoption at its earliest for adoption the amendments tabled by the possible convenience. The management com- subcommittees, and the constitutional as- mittee proposed the formation of two sub- sembly met at its last sitting on October 11, committees of the constitutional commit- 1996, to pass the amended text. The text was tee to handle the actual negotiation of the adopted with the same overwhelming major- amendments; these divided the work along ity as on May 8, and then immediately tabled subject matter lines. To save time, when the before the constitutional court. The interim subcommittees began their work on Septem- constitution required the court to examine ber 25, technical experts supporting them afresh whether the text complied with the tabled two sets of draft formulations. One constitutional principles. Nevertheless, the suggested amendments to address the defects judges had to approach the second-round that the court had identified, and the other certification exercise in the context of their proposed a technical refinement of the text. previous judgment. Agreement on some amendments, such The court issued directions similar to as the addition of special procedures for those given for the first certification exercise, constitutional amendment, was not difficult and ordered the assembly to publish the di- to achieve, given the court’s clear guidance rections as widely as possible and to make and the relatively straightforward changes copies of the amended text freely available. needed. The most critical and challenging Hearings were scheduled for November 18. issue that had to be addressed at this stage While any objector could raise any issue, concerned provincial powers. The court whether previously considered or not, the found that in several respects, the provinces’ court made it clear that because of the ex- powers were substantially less than and in- tensive written and oral submissions in the ferior to the powers they had enjoyed under first round, it believed it was unlikely that the interim constitution and that the revised any important issues had been overlooked. scheme thus violated the constitutional prin- By this point, the opposition parties had ©ciples. Copyright The court’s guidance made by it imme the- clearly Endowment won as much ground as they could. of133 diately apparent which amendments ought Only two political parties represented in the to be made, though negotiating some of the constitutional assembly lodged objections, the neededthe revisions, United particularly concerningStates the Democratic Institute Party and IFP; of the NPPeace formally structural design of local government, proved announced that it did not intend to object to difficult. Nevertheless, the process moved the amended text. The province of KwaZulu/ swiftly at this stage. Natal and eighteen private individuals and The IFP toyed with joining in the amend- interest groups also lodged objections, while ment process; its members attended a num- the assembly in turn filed submissions sup- ber of meetings and participated in bilateral porting certification. The hearing lasted two and multilateral discussions with the ANC and a half days, and on December 4, 1996, and other parties. But when the IFP insisted the court delivered its unanimous judgment that meetings renegotiate matters long set- certifying the amended text.134 The court tled that did not offend any constitutional noted that the amended text bore every sign principle, these requests were rejected. Thus, that the assembly took the court’s previous shortly before the completion of the amend- judgment, which had carefully spelled out Framing the State in Times of Transition 143

the reasons for its finding of noncompliance, prominent place for it in the process, but in as the blueprint for modifying the text. the event, such a role never materialized.140 Handed a historically significant and po­­- Early on, when both sides were developing litically charged task, the constitutional court a commitment to negotiation, the ANC rec- performed its role with transparency, ex- ognized that unless it seized the initiative in treme care, and scrupulous fairness. A less preparing for negotiation, the international well-executed performance might have made community would play this role. To lose this the court’s decisions more difficult to accept. initiative would have meant losing the abil- Moreover, the certification procedure may ity to determine the agenda of the process, have been accepted as valid at least in part be- as happened in Zimbabwe and Namibia. The cause the function was given to a court with a NP likewise opposed international involve- “growing reputation for independence,” and ment, having found the experience of U.S. because the final result was seen as a legal and British pressure in the Namibian nego- rather than political decision.135 tiations humiliating.141 However, the international community did help to shape the broader environment The International Dimension in which the negotiated transition was Unlike the constitution-making experiences launched. Apartheid South Africa had been in various other countries in transition from treated as an international pariah in many authoritarianism or conflict after the Cold quarters for decades and was subjected to War, 136 the international community—in the various sanctions, even as Cold War priori- form of international or regional organiza- ties, combined with South Africa’s profita- tions or even individual constitutional ex- ble investment environment for international perts—played a relatively insignificant role in business interests, encouraged many Western the constitution-making process in South governments to treat the NP government as Africa. Some limited consultations with for- an ally.142 But as the Cold War ended, West- eign experts occurred137 and parties used ern allies, encouraged by the ANC,143 began comparative research and knowledge in pre- to intensify pressure for change, thus help- paring their proposals,138 but both the design ing to weaken the regime’s untenable grip © Copyrightand substantive outcome of theby process the were Endowmenton power after de Klerk took the ofhelm. For homegrown. One particular foreign experi- example, by October 1989, British prime ence that the South African constitution minister Margaret Thatcher looked to the themakers United looked to for lessons States was that of Na- InstituteSouth African government of Peace to provide her mibia; in Albie Sachs’ words, “it was like a with sufficient grounds to stave off demands trial run.” In particular, Namibia’s use of fun- by Commonwealth leaders for tougher sanc- damental principles that served as the foun- tions. And in the United States, the State dation of the final settlement, the use of pro- Department demanded that the South Af- portional representation, and the structure of rican government unban political parties, lift the constitution served as positive models.139 the state of emergency, allow for the return The international community neither di- of exiles, remove all discriminatory legisla- rectly catalyzed nor mediated in the negoti- tion, and begin negotiating with credible ated transition. The 1989 Harare Declaration black leaders on a new constitutional order of the Organization of African Unity had by June 1990.144 Weeks later, the govern- envisioned a prominent role for the interna- ment unconditionally released several senior tional community and the PAC supported a political prisoners. 144 Hassen Ebrahim and Laurel E. Miller

Conclusion: The Impact process of dismantling the abhorrent apart- of the Constitution-Making Process heid system, and, in effect, concluding a and Factors Contributing to Success peace treaty between black and white South The signing ceremony for the final constitu- Africans. The constitution-making process tion was infused with symbolism. The event was the heart of a transition that, against was held on December 10, International the odds, was essentially peaceful, despite Human Rights Day; the venue chosen was extremist-instigated political violence during Sharpeville, in Vereeniging, where on May 31, the multiparty negotiating process. While 1902, the Treaty of Vereeniging between the the country today suffers many social woes Boers and British was signed, ending a bit- associated with the legacy of colonialism and ter anti-imperialist war and allowing South apartheid, including severe economic dispar- ities and very high crime rates, political vio- Africa to be united as one sovereign terri- 145 tory from four independent states. The treaty lence is largely absent. In these important had paved the way for the first constitutional and enduring respects, the outcome of the dispensation, one that sealed the disenfran- process must be regarded as a success. chisement of the black majority. Signing the The nature of the process—its qualities, on final constitution in this location provided the whole, of inclusiveness, transparency, and a bookend to a history that started in divi- participation—was clearly instrumental in sion and conflict and ended in reconciliation. producing the outcome. Indeed, the process Vereeniging also represented more recent and the substantive outcome were two sides South African history: It had been the scene of the same coin. A high degree of consensus of much political conflict and strife, gaining was achieved among parties representing a international notoriety after the Sharpeville wide range of ideological perspectives both massacre on June 16, 1960. because the design of the process empha- President Mandela’s signing of the new sized the necessity of consensus and because constitution—the birth certificate of a new the parties crafted substantive compromises South Africa—was undoubtedly a remark- that they could actually agree upon. In other able moment. What were the key charac- words, reconciliation between the black ma- teristics of the negotiating process and the jority and white minority—in the sense of ©conditions Copyright in the country that enabledby thisthe creating Endowment a political system that both could of ac- moment to come about? And what, so far, cept and use to settle differences peacefully— hasthe been theUnited constitution-making States process’s was Institute achieved, and in tracing of the source Peace of that lasting impact? achievement, process and substance cannot be distinguished. The process was structured and conducted in a way that enabled both Impact of the Constitution-Making sides to achieve important objectives and to Process create a South Africa that all could live in; The constitution-making process produced the substantive agreements reached through both a document of unquestioned legitimacy the process were the concrete manifestation and high substantive quality and a form of of those satisfied objectives. The process and democracy that has become increasingly substance were of a piece in another sense stable and institutionalized. The 1996 consti- as well. As Heinz Klug observes, the parties’ tution has been implemented and respected substantive goals shaped their procedural in actual practice. Moreover, the constitution preferences,146 and thus, the agreements ne- making was an integral part of the broader gotiated with respect to the design of the Framing the State in Times of Transition 145

constitution-making process automatically despite a history of conflict—surely reflects im­plicated certain substantive ends. the legitimacy of the constitutional system, However, the constitution-making pro- which, in turn, is a consequence of the nature cess did not achieve reconciliation between of the process. the ANC and IFP, and the country suffered subsequent violence between supporters of these two groups. These parties could not Ingredients of Success find common ground through the process, A confluence of conducive conditions, key despite ANC as well as NP negotiators’ per- events, and wise choices explains the suc- sistent efforts to bring the IFP on board. It cessful outcome of the constitution-making may be that the IFP’s positions were not process. It is impossible to do more than reconcilable with the consensus achieved catalogue the factors contributing to suc- among other parties; or perhaps IFP leader cess, as their relative importance cannot be Buthelezi was simply too obstreperous. The ascertained objectively. Regardless, such a IFP showed that it felt alienated by elements catalogue can be a highly useful resource for of the process, including the sufficient con- those wishing to assess whether the tech- sensus procedure and the use of parallel bi- niques applied in South Africa can be trans- lateral meetings. The party’s own orientation lated into other contexts. may have been to blame for this alienation, The relevant factors may be organized or it may be that it is difficult in any situ- into three somewhat overlapping general ation for a constitution-making process to categories: political, practical, and personal. satisfy relatively minor players with outlying Regarding political circumstances, the par- positions. The IFP’s lesser negotiating skill ties’ commitment to negotiating a transition also might have been a factor in the failure and a new constitutional dispensation was to make the party part of the process. More born of a stalemate. The ANC recognized than any other party, during the interim con- that it could not defeat the government by stitution negotiations, the IFP “locked itself force,149 and the NP recognized that it could into positions which were out of the main- no longer rule the country as it had without stream negotiating process.”147 entirely ruining it. This factor combined to © CopyrightWhile the impact of the by nature the of the Endowmentgood effect with other factors, of such as the process on its immediate result may be clear, presence of wise leaders on both sides of the assessing precisely how the process has, in divide who perceived the need for negotia- thea lasting United way, affected theStates nature of politics Institutetion in these circumstances, of Peaceand who under- and governance in South Africa is more dif- stood that negotiations could deliver results ficult. In particular, what impact has the in- that each side could live with. Pressure from clusiveness and participatory quality of the the international community, especially trade constitution-making process had on the po- partners, contributed as well to the NP’s ap- litical process in South Africa?148 One con- preciation of the need to negotiate. crete effect is that the success of the public A strong sense of South African identity participation program influenced the consti- on both sides contributed as well. Especially tution makers to insert a constitutional re- after the 1994 elections, negotiators across quirement that all new legislation be accom- the spectrum espoused a common nation- panied by a process of public participation alism. This removed from the agenda the­ and public hearings. More broadly, the con- issue of national identity, which has bedev- tinuing political stability in South Africa— iled other constitution-making processes, and 146 Hassen Ebrahim and Laurel E. Miller

facilitated the finding of common ground. In objective of this commitment was to draw addition, a strong legal tradition in South potential spoilers into the process, the main Africa—which, surprisingly, both the op- parties moved ahead when necessary, even pressed and oppressor respected—helped when the IFP and others walked out. the constitutional engineers to resolve many Furthermore, though some of the most serious divergences of interests through legal important aspects of the process were the formulation and provisions calling for resort least open and democratic—specifically, the to legal institutions, such as the constitu- negotiation of the constitutional principles, tional court.150 the extensive use of private bilateral meet- Finally, the presence of two dominant play- ings, and the constitutional court’s certifi- ers on the political scene facilitated agree- cation of the final result—the public’s in- ment. The ANC and NP drove the negoti- volvement in other aspects seems to have ating process through their bilateral contacts contributed to the respect that the final doc- and worked in concert to broaden consensus ument enjoys. One analyst of the process has to include other players.151 For the most part, observed a feeling of loyalty to the constitu- they successfully performed a difficult balanc- tion spanning political ideologies that seems ing act between forging agreements between connected to the sense of ownership that themselves and keeping the more peripheral, emerged from the process, including from and often more ideologically extreme, players the lack of international mediation.152 Par- on board to prevent spoiling. ticipation enabled ordinary people to begin As for practical factors, including both to realize that they could influence laws and the procedural choices the participants made the government. In the course of the process, and the technical arrangements they put in there was a groundswell of interest among place, the priority given to achieving consen- citizens in matters that were previously the sus was critical. For example, while the ANC exclusive preserve of those in power. In this did not have sufficient votes in the constitu- way, the process may have helped to foster a tional assembly to adopt the constitution on culture of constitutionalism in South Africa. its own, its relative strength—63.7 percent The parties’ decision to establish a two- of members—weighed heavily on its nego- stage structure for the process was of perhaps ©tiating Copyright partners. Nevertheless, it by repeatedly the paramount Endowment importance to the realization of of demonstrated willingness to compromise to the fundamental compromise between the gain wider support for particular provisions. interest of the majority in a swift transition Closelythe related United to the focus onStates consensus to Institutedemocracy and the interests of of Peacethe minor- was the parties’ emphasis on inclusiveness as ity in a guaranteed role in the transition and a means of clothing the constitution in legit- in certain lasting protections. This structure imacy. In the constitutional assembly phase, proved to be an effective conflict management the principle of inclusion produced a cum- device. The graduated nature of the approach bersome process in some respects because it created the opportunity to bring potential meant involving a large number of people. spoilers into the constitution-writing process The assembly had 490 members, many of and transitional governance arrangements, as whom were directly engaged in negotiation well as to build the confidence of minorities and drafting. But any inefficiencies that re- in the prospect of an ANC-led government sulted from this approach were a fair price before that eventuality occurred. for the legitimacy of the final document, Another practical factor was the very long and the commitment to inclusiveness was lead-up to adopting the final constitution. The not permitted to derail progress. While one preliminary negotiation stages, CODESA, Framing the State in Times of Transition 147

and the MPNP all resolved many proce- Furthermore, the personal chemistry that dural and substantive obstacles to final agree- developed among negotiators, and their will- ment, with the consequence that the final ingness to develop personal relationships constitution-making process was not over- across the divide, facilitated their ability to burdened with issues. The slate was cleaned find compromises.155 The length of the pro- as much as possible, in effect, before the as- cess, noted as a contributing practical factor sembly ever started its work. The length of above, helped create opportunities for these the overall process also enabled parties to relationships to develop. Over the course of hone their negotiating skills and fully de- negotiations, key participants spent a great velop their substantive positions. Moreover, deal of time together and came to know one direct contacts throughout the slow buildup another personally. This shared time human- to substantive negotiation gave interlocu- ized political opponents, and negotiators be- tors the opportunity, on the Afrikaner side, gan to learn to separate their political differ- to shed their demonized perceptions of the ences from their growing respect for each ANC, and on the ANC side, to become sen- other as people. In a sense, the long process sitized to white fears.153 enabled reconciliation between the leader- In addition, the generally efficient - ne ships of the parties. gotiating structures that the parties created The essentially equal sophistication of the played a positive role. The use of lessons main actors on both sides contributed sig- learned at CODESA to build better struc- nificantly as well.156 Both sides had skilled tures for the MPNP, and the care taken in negotiators and well-developed positions devising the assembly structures, enabled and proposals. The depth of expertise and those forums to translate disparate positions organizational experience on the ANC’s part into agreed-upon results. was born of years of operation in exile as well The contribution of personal factors, it is as the participation of highly skilled indi- widely agreed, cannot be overstated. There viduals. The NP had the experience of run- is no question that the right people were on ning the country for almost half a century. the scene at the right historical moment, and Without this depth of political and techni- that those individuals exercised mature and cal expertise on both sides, it might not have © Copyrighteffective leadership. The qualityby of leadershipthe Endowmentbeen possible for the complex negotiatingof shown by Mandela and de Klerk, as well as and drafting structures put in place to have Ramaphosa, Meyer, and others, has rarely operated as effectively as they did. thebeen matchedUnited in such difficult States circumstances. InstituteFinally, a sine qua of non ofPeace South Africa’s The maturity of the top leaders was evidenced success was the commitment of both sides to in part by their recognition that they had to negotiating a solution to the country’s need tolerate a certain amount of crowing by the for a new constitutional dispensation. This other side about successes achieved at the factor is a personal one because it required negotiating table, even if exaggerated; each a commitment to negotiation on the part of side realized that they needed the other to individual participants, as well as the capacity be able to deliver the support of its constit- of those individuals to transcend their past uency.154 Exceptional personal qualities were experiences as oppressed and oppressor, and exhibited by the members of the constitu- to work patiently and persistently over a long tional court as well. If they had been any less period of time to reach the desired end. But skillful and scrupulously fair in playing their it is also a factor resulting from those indi- unusual role, the result of their work might viduals’ appreciation of political realities. The not have been as well accepted as it was. commitment to negotiation, and concomi- 148 Hassen Ebrahim and Laurel E. Miller

tant willingness to compromise, constitutes MPNP Multi-Party Negotiating Process the necessary condition for any successful (multiparty talks that culminated in adoption of the interim constitution negotiation: political will. That condition and other transitional measures) was manifest in South Africa in the fact, for NP National Party (ruling party of the example, that parties on both sides moved apartheid regime) their positions during the process, realizing PAC Pan-Africanist Congress (left-wing that they had to recognize and respect the extremist party, formed by ex-ANC diversity of interests involved. The presence members) of political will to see the process through to a conclusive end was supported by the Notes parties’ shared belief that they could achieve 1. Significant portions of this chapter are their main objectives through negotiation, adapted from Hassen Ebrahim, The Soul of a Nation: and, in turn, supported the parties’ efforts Constitution-making in South Africa (Cape Town: to overcome the many obstacles that South Oxford University Press, 1998). Hassen Ebrahim Africa faced in moving from apartheid to served as the executive director of the South Af- democracy. rican constitutional assembly and previously as na- tional coordinator for the African National Con- gress’s negotiations commission. * * * 2. Albie Sachs, “The Creation of South Af- Whether or not the South African experi- rica’s Constitution,” New York Law School Law Re- ence can be a model for future constitution- view, vol. 41 (1997), pp. 669–70. making exercises depends at least partly on 3. Nico Steytler, “Constitution-Making: In whether the conditions contributing to suc- Search of a Democratic South Africa,” in Negotiat- cess in this case can be created elsewhere, and ing Justice: A New Constitution for South Africa, ed. Mervyn Bennum and Marilyn D. Newitt (Exeter: whether those future circumstances are ripe University of Exeter Press, 1995), pp. 62–63. for the constructive procedural choices made 4. Fink Haysom, “Special Features and Mech­- in South Africa. Certainly, the South Afri- anisms in Negotiating the South African Consti- can case offers practical ideas regarding pro- tution,” in Constitution-Making and Democratisa- cedural design that can inform and inspire tion in Africa, ed. Goran Hyden and Denis Venter future constitution makers. Perhaps above (Pretoria: Africa Institute of South Africa, 2001), © Copyright by thep. 93. Endowment of all, the South African constitution-making 5. The body of literature on the South Afri- experience can serve as a source of hope for can constitution is large; many of the texts pertinent othersthe seeking United to bridge seemingly States unbridge- to Institutethe process of making the interimof andPeace final con- able divides. stitutions are cited herein. 6. For a detailed and fascinating telling of the history of the transition negotiations, see Allis- Glossary of Acronyms ter Sparks, Tomorrow Is Another Country: The Inside ANC African National Congress (main Story of South Africa’s Road to Change (New York: party opposing the apartheid regime; Hill and Wang, 1995). ruling party postapartheid) 7. The racial and ethnic landscape of South CODESA Convention for a Democratic South Africa is, of course, more complex than black and Africa (first attempt at multiparty white. For reasons of economy and confinement to talks) the scope of this chapter, such complexities are not IFP Inkatha Freedom Party (led by explored here. Mangosuthu Buthelezi, opposed to 8. Like the racial landscape, the political unitary state and to use of elected landscape and history of South Africa are more constitutional assembly) complex than the treatment in this chapter reveals. Framing the State in Times of Transition 149

As the ANC and NP were the main actors in the tance of the position of chief minister of KwaZulu, ­constitution-making process, their roles and per- the Zulu tribal homeland, in the hope that he would spectives are given the lion’s share of attention here. establish “an internal political platform for their 9. This is a term used in South Africa to re- outlawed movement. But the relationship soured fer to persons of mixed race. and Buthelezi turned Inkatha into a Zulu ethno- 10. The consultation involved thousands of nationalist party opposed to the ANC.” Sparks, To- volunteers, who “went from door to door to docu- morrow Is Another Country, p. 125. Regarding gov- ment people’s grievances and aspirations.” Cyril Ra- ernment complicity in Inkatha-instigated violence, maphosa, “Negotiating a New Nation: Reflections see, e.g., Sparks, Tomorrow Is Another Country, pp. 163–78. of the Development of South Africa’s Constitution,” in The Post-Apartheid Constitutions: Perspectives on 21. See “Planning a New Nation,” Star, South Africa’s Basic Law, ed. Penelope Andrews and ­December 21, 1991. Stephen Ellmann ( Johannesburg: Witwatersrand 22. The first working group considered the University Press, 2001), p. 81. creation of a climate for free political participa- 11. See Eldred de Klerk, “South Africa’s Ne- tion and the role of the international community, gotiated Transition: Context, Analysis and Evalu- the second was mandated to explore constitutional ation,” Accord, no. 13 (2002), pp. 14–19. De Klerk principles and the constitution-making body, the observes that the Congress of the People “was a third dealt with an interim government, the fourth unique experience of mass participation in a po- was to debate the future of the homelands, and the litical visioning process amidst hostile political fifth was to deal with time frames. circumstances and shaped the implicit expectation 23. See “Codesa to Call for Submissions on for public participation in creating a new South Af- New Constitution,” Citizen, February 5, 1992. rica.” See also Sparks, Tomorrow Is Another Coun- 24. “Support for Talks is Vital—Codesa,” Bus­- try, p. 61, pointing out that consultation was “an iness Day, February 26, 1992. obsessive requirement within the internal resistance 25. Of more than 2.8 million voters, 68.7 per- movement.” cent endorsed the reform program. John Hatchard 12. This letter is reproduced in Ebrahim, Soul and Peter Slinn, “The Path towards a New Order in of a Nation, Document 9, p. 429. South Africa,” International Relations, vol. 12, no. 4 13. This letter is reproduced in Ebrahim, Soul (1995), p. 7. of a Nation, Document 10, p. 433. 26. Regarding the Boipatong massacre of 14. Regarding Botha’s half-hearted reforms June 1992 and other violence committed by IFP and the intensified resistance they provoked, see supporters after the collapse of CODESA, as well Sparks, Tomorrow Is Another Country, pp. 68–75. as government complicity, see Sparks, Tomorrow Is Another Country, pp. 140–47. © Copyright15. See Sparks, Tomorrow Isby Another theCountry, Endowment of pp. 53–56. 27. See Roelf Meyer (as told to Hennie Marais), “From Parliamentary Sovereignty to Con- 16. See Ramaphosa, “Negotiating a New Na- stitutionality: The Democratization of South Africa, thetion,” p.United 72. States Institute of Peace 1990–1994,” in The Post-Apartheid Constitutions, 17. See Sparks, Tomorrow Is Another Country, p. 56. p. 36. Toward the end of this period, ANC lead- 28. Haysom notes that this was arguably ers in exile and government officials also held secret the most important of the accords reached in the talks in Switzerland. Sparks, Tomorrow Is Another period leading up to substantive constitutional ne- Country, chap. 9. gotiations, because it reflected both major parties’ 18. The Organization for African Unity dec- acceptance that the basic preconditions for substan- laration adopted August 21, 1989, at the suggestion tive talks had been met, as well as their agreement of the ANC, is available at www.anc.org.za/ancdocs/ on the fundamentals of the process ahead. “Special history/oau/harare.html (accessed April 25, 2009). Features and Mechanisms,” p. 101. Regarding the 19. For a discussion of de Klerk’s speech and significance of the Record of Understanding, see its context and significance, see Sparks,Tomorrow Is also Meyer, “From Parliamentary Sovereignty to Another Country, pp. 5–14. Constitutionality,” pp. 56–58. 20. Despite their rejection of the homeland 29. Meyer, “From Parliamentary Sovereignty system, ANC leaders approved of Buthelezi’s accep- to Constitutionality,” p. 63. 150 Hassen Ebrahim and Laurel E. Miller

30. Hatchard and Slinn, “Path towards a New 36. The opinion page of the Sunday Times on Order,” p. 8. November 21, 1993, just after political party lead- 31. See Haysom, “Special Features and Mech- ers signed the interim constitution, captured the anisms,” pp. 104–05. Haysom notes that substantive moment: “We, the people of South Africa, have negotiations were conducted “under the guise of a wrought a miracle. We have accomplished what few technical umbrella” to avoid the public posturing people anywhere in the world thought we could do: that had characterized CODESA. See also Rich- we have freed ourselves, and made a democracy, and ard Spitz with Matthew Chaskalson, The Politics of we have done so without war or revolution.” Transition: A Hidden History of South Africa’s Nego- 37. See Nicholas Haysom, “Federal Features tiated Settlement (Oxford: Hart Publishing, 2000), of the Final Constitution,” in The Post-Apartheid p. 48. In remarking on the importance of the tech- Constitutions, p. 511 (“The final constitution in nical committees, these authors note, “One of Co­ most respects constitutes a refinement of the- in desa’s legacies was the lesson that working groups terim text.”); and Haysom, “Special Features and comprising 76 politicians were singularly incapable Mechanisms,” p. 109 (the main innovations in the of discussing and settling core issues on a rational, final constitution were the National Council of technical basis.” Provinces, the chapter on cooperative governance, 32. Ramaphosa, “Negotiating a New Nation,” and, to some extent, the elevation of local govern- p. 78. According to Ramaphosa, the broadcast of ment to a level or sphere of government). Mandela’s appeal “signaled for many people that the 38. Spitz, Politics of Transition, pp. 2–3. balance of forces in South Africa had changed ir- 39. Sachs, “Creation of South Africa’s Con- revocably. Nothing could illustrate more clearly that stitution,” p. 673. Mandela had become the de facto head of state in 40. Spitz, Politics of Transition, pp. 3 and 74, South Africa.” the latter explaining the theory underlying the two- 33. Ramaphosa (“Negotiating a New Nation,” stage approach. p. 78) points out that there was no such deadline 41. Haysom points out that the ANC had, in until this moment. fact, prepared a full draft of the constitution, as well 34. In one particularly dramatic event, several as supporting research and submissions on supple- hundred armed right-wingers stormed the site of mentary legislation, prior to the MPNP. This gave the MPNP and invaded the negotiating chamber. the ANC an advantage in establishing the terms Several people were injured, and a great deal of prop- and direction of the debate. Haysom, “Special Fea- erty was damaged. See Meyer, “From Parliamentary tures and Mechanisms,” p. 103. Sovereignty to Constitutionality,” pp. 63–64, regard- 42. The ANC and NP agreed upon the two- ing violence during the MPNP. phase framework for the transition in the Septem- © 35.Copyright Sachs explains that during by the debates the ber 1992Endowment Record of Understanding. Spitz, Politics of of over the design of the constitution-making process, Transition, p. 69. one group of parties sought a roundtable style for- 43. Spitz, Politics of Transition, p. 3. matthe for negotiating United and drafting theStates constitution, Institute44. Ibid., p. 69. Other partiesof envisionedPeace the followed by a popular referendum to confer legiti- two stages differently, while the right-wing Con- macy on the negotiated document. The other group, cerned South Africans Group alliance insisted led by the ANC, “argued that the basic problem all on a one-stage transition, with a new constitution along in South Africa had been the complete failure negotiated by an unelected convention of political of self-determination.” Thus, a small, self-appointed parties. See Spitz, Politics of Transition, pp. 69­–72. set of negotiators could not produce a legitimate Ultimately, as with many other issues, ANC-NP document. Legitimacy was “a fundamental element agreements held sway. More to the point, it was of the psychological, cultural, and historical trans- the moderate camp in both parties that prevailed, formation that the country needed,” and making a as neither the ANC nor the NP leaderships were constitution by dealing around a table “could result unanimous in their views on the negotiating and in a precarious situation, for the new constitutional transition processes. See Spitz, Politics of Transition, order, leaving it without the sense of destiny and p. 77. historical evolution, intensity, or drama that one 45. See Spitz, Politics of Transition, p. 416: needs for an event of this kind.” Sachs, “Creation of “Although neither of South Africa’s post-apartheid South Africa’s Constitution,” pp. 671–72. Constitutions would be the product of a perfectly Framing the State in Times of Transition 151

legitimate, democratic and unfettered process, a two- 56. Regarding the role of the transitional ex- stage process afforded enough continuity, enough ecutive council, see Hatchard and Slinn, “Path to- democracy, and enough legitimacy to satisfy the wards a New Order,” pp. 9–12. main political forces.” 57. See Spitz, Politics of Transition, pp. 87–89. 46. Ramaphosa, “Negotiating a New Na- 58. Spitz notes that power sharing in South tion,” p. 80. See also Siri Gloppen, South Africa: The Africa was not consociational, as it was not a system Battle over the Constitution (Aldershot: Dartmouth/ for the representation of various ethnic groups. The Ashgate, 1997), p. 269, noting that an advantage of election results revealed that only Inkatha was an the two-stage process is that it delinked, to some ex- ethnically based political power: “The power-sharing tent, the final constitution from the transition nego- arrangement had little if anything to do with South tiations, in which the creation of a well-­functioning Africa’s ethnic and racial diversity, and all to do with constitutional framework was secondary to reach- the pact negotiated between the key political forces ing a deal to achieve peaceful change. at that moment.” Spitz, Politics of Transition, p. 99. 47. Chapter 15, Constitution of the Republic Heinz Klug also makes the point that, compared to a of South Africa, Act 200 of 1993, available at www. consociational arrangement, the proportional partic- concourt.gov.za/site/constitution/english-web/ ipation scheme for the government of national unity ­interim/ch15.html (accessed April 25, 2009). was “less static and more representative.” Heinz Klug, “Participating in the Design: Constitution- 48. Agreement on the device of the constitu- Making in South Africa,” Review of Constitutional tional principles resolved an impasse between the Studies, vol. 3, no. 1 (1996), p. 40. ANC, which wanted a democratically elected body to draft the constitution, and political and racial mi- 59. Christina Murray, “Negotiating beyond nority groups, which sought a process in which all Deadlock: From the Constitutional Assembly to existing political parties would agree unanimously the Court,” in The Post-Apartheid Constitutions, pp. on a new constitution. Haysom, “Federal Features,” 113–14. p. 509. 60. See Spitz, Politics of Transition, p. 55: “It 49. Meyer, “From Parliamentary Sovereignty may be that the secrecy during the MPNP was nec- essary because at Kempton Park [the location of the to Constitutionality,” p. 66. talks] the very future of the negotiating process was 50. Haysom, “Federal Features,” p. 509. tenuous, partly because of the mutual suspicions but 51. Sec. 74, Constitution of the Republic of principally because there was no formal political South Africa, Act 200 of 1993, available at www. framework that guaranteed that negotiations would concourt.gov.za/site/constitution/english-web/ continue to completion.” ­interim/ch5.html (accessed April 25, 2009). 61. See Meyer, “From Parliamentary Sover- © Copyright52. Sachs, “Creation of South by Africa’s the Con- Endowmenteignty to Constitutionality,” p. 65. of stitution,” p. 672. 62. Scheduling the election also had the ef- 53. Ibid., pp. 672–73. fect of slowing progress in reaching compromises, the 54.United The principles areStates contained in Sched- Institutebecause parties began to oftry to scorePeace political points. ule 4 of the Constitution of the Republic of South Meyer, “From Parliamentary Sovereignty to Con- Africa, Act 200 of 1993, available at http://www. stitutionality,” p. 66. concourt.gov.za/site/constitution/english-web/ 63. While the IFP’s walkouts throughout the interim/index.html (accessed April 25, 2009). For process were problematic in certain respects, they a general description of each of the principles, see did have the salutary effect of enabling agreements Spitz, Politics of Transition, pp. 81–82. to be reached more quickly than might have been 55. Haysom, “Federal Features,” pp. 509–10. the case had they participated, given their positions. See also Haysom, “Special Features and Mecha- See Haysom, “Special Features and Mechanisms,” nisms,” p. 102, in which he notes that, surprisingly, pp. 109–10. principles concerning the issues that had divided 64. See Spitz, Politics of Transition, pp. 56–61, South Africans for 300 years were brief and uni- and Haysom, “Special Features and Mechanisms,” versally accepted, while the issue of the status and p. 105. powers of provincial governments overwhelmingly 65. The Democratic Party had insisted that dominated the principles and attracted the sharpest the appointment of judges involve the judiciary and contestation. legal profession; the opposing argument was that 152 Hassen Ebrahim and Laurel E. Miller

neither the judiciary nor legal profession were rep- 77. For example, the Human Rights Com- resentative of the country’s population, since their mission, the Gender Project, and the South Afri- members were overwhelmingly male and white. can Council of Churches. The media voiced strong 66. Meyer, “From Parliamentary Sovereignty objections to being excluded from multilateral to Constitutionality,” p. 69. meetings. 67. Hatchard and Slinn, “Path towards a New 78. The full panoply of deadlock-breaking Order,” p. 9. procedures provided in Section 73 of the interim 68. Ramaphosa explains that the ANC con- constitution can be summarized as follows: tinued after the MPNP to engage right-wing (a) If the constitutional assembly failed to groupings and encourage them to participate in the adopt the draft text by a two-thirds ma- election process in order to defuse the threat to sta- jority of all members, but a simple major- bility that they posed. Ramaphosa, “Negotiating a ity supported the draft, the panel of con- New Nation,” p. 79. stitutional experts would have thirty days 69. See Ramaphosa, “Negotiating a New Na- to propose amendments; tion,” p. 79. (b) An amended draft unanimously recom- 70. Hatchard and Slinn, “Path towards a New mended by the panel would be sent to Order,” p. 14. the constitutional assembly, which would 71. See Sparks, Tomorrow Is Another Country, have fourteen days to approve it by a two- p. 226. thirds majority; (c) If the panel could not make a unanimous 72. Jessica Piombo, “Politics in a Stabilizing recommendation, of if the two-thirds ma- Democracy: South Africa’s 2004 Elections,” Strate- jority vote requirement was not met for gic Insights, vol. 3, no. 5 (May 2004), available at a recommended amended draft, the con- www.ccc.nps.navy.mil/si/2004/may/piombo stitutional assembly could adopt any pro- May04.asp (accessed April 25, 2009). Piombo notes that the highest number of pre-election violent in- posed draft before it by simple majority; cidents occurred between members of the ANC however, in this case, after certification and IFP. In the runup to the election, violence also of the adopted text by the constitutional broke out over the status of the Bophuthatswana court, the text would have to be submitted homeland, illustrating the alliance of convenience to popular referendum; between the white right-wing and certain black (d) A referendum would have to be held homeland leaders. See Sparks, Tomorrow Is Another within ninety days of being called, and 60 Country, pp. 206–19. percent of votes cast would be needed to 73. Eighty-six percent of eligible voters turned approve the draft constitution; ©out. ForCopyright these elections, all South Africans by over thethe Endowment(e) If none of the above measures produced of a age of eighteen could vote, without any registration final approved constitution, the president requirement (the 1996 Constitution required a vot- would have to dissolve parliament; in this ers’the roll for futureUnited elections). Piombo, States “Politics in a Institutesituation, a newly electedof constitutionalPeace Stabilizing Democracy.” assembly would have one year to adopt a 74. See International Republican Institute, final constitution by a 60 percent majority “South Africa: Campaign and Election Report, of all members. April 26–29, 1994” (October 1994), available at Sec. 73, Constitution of the Republic of South www.iri.org/africa/southafrica/pdfs/South%20 Africa, Act 200 of 1993, available at www. ­Africa’s%201994%20Presidential%20and%20 concourt.gov.za/site/constitution/english-web/ ­Parliamentary%20Elections.pdf (accessed April 25, interim/ch5.html (accessed April 25, 2009). 2009); and Haysom, “Special Features and Mecha- 79. Murray, “Negotiating beyond Deadlock,” nisms,” p. 108. 118­–19. 75. See Steytler, “Constitution-Making,” 80. As described in the chapter on Namibia pp. 71–77. Steytler notes that the questions of how in this volume, the constituent assembly there in the elections should be managed and who should November 1989 formally adopted UN Security ­administer them had been highly contested. Council Resolution 435, which incorporated a set 76. Sachs, “Creation of South Africa’s Con- of constitutional principles laid down in 1982 by stitution,” pp. 673–74. the Western contact group. Framing the State in Times of Transition 153

81. In the constitutional assembly’s decision- ernment, the question of proportional representa- making procedures, a vote was called only when the tion, and the bar against members of parliament terms of the rules or the interim constitution re- crossing the floor. quired one. Otherwise, all matters were decided by 90. At this point, deadlock remained on the consensus. However, whenever a vote was called, the lockout, property, and education clauses. Specifically, resolution concerned was passed unanimously. the NP continued to demand a right for employers 82. Theme committees each were assigned to lock out striking workers (ultimately dropped to deal with the issues implicated by specific con- at the eleventh hour), a guaranteed right to prop- stitutional principles. In general terms, the top- erty in the Bill of Rights (in the end, settled with ics covered by each numbered committee were as a compromise limiting the circumstances in which follows: 1—character of the democratic state (pre- property could be expropriated), and a right to edu- amble, representative government, state name and cation in one’s own language (resolved by providing symbols, separation of powers, etc.); 2—structure a right to education in the language of one’s choice, of government; 3—relationship between levels of with single-medium schools being one option for government; 4—fundamental rights; 5—judiciary the government to consider). See Ramaphosa, “Ne- and legal systems; and 6—specialized structures of gotiating a New Nation,” pp. 83–84. government (i.e., public administration, financial 91. See note 78 laying out the full set of dead- institutions and public enterprises, transformation lock-breaking mechanisms. and monitoring, and security services). See Ebra- 92. The other 13 percent comprised the mem- him, Soul of a Nation, pp. 183–86 for a detailed list bers from the IFP, who had boycotted the negotia- of the subject matter mandate of each committee. tions since April 1995; the Freedom Front mem- 83. Murray, “Negotiating beyond Deadlock,” bers, who abstained; and the two African Christian p. 113. Democratic Party members, who voted against the 84. For data on the work of the other theme constitution because it failed to subject all govern- committees, see Ebrahim, Soul of a Nation, notes 26, ment and law to the law of God. See Spitz, Politics 28, 30, 32, and 34–37, pp. 338–43. of Transition, p. 425, and Murray, “Negotiating be- yond Deadlock,” p. 119, note 35. 85. For an example of substantive advice 93. Constitutional assembly resolution, Oc- from the panel concerning rights of noncitizens, tober 11, 1995. see Jonathan Klaaren, “Contested Citizenship in South Africa,” in The Post-Apartheid Constitutions, 94. The survey, designed and analyzed by the pp. 308–09. Community Agency for Social Enquiry (CASE), was carried out in April 1995. Later surveys were 86. Murray, “Negotiating beyond Deadlock,” conducted throughout the process. The results of p. 118. Christina Murray was a member of the the CASE survey appear in an unpublished volume panel. © Copyright by the Endowmenttitled Taking the Constitution to the People: of Evaluat - 87. See Ramaphosa, “Negotiating a New Na- ing the Constitutional Assembly, compiled by David thetion,” p.United 74. States InstituteEverett ( Johannesburg: CASE,of 1997).Peace 88. As Ramaphosa explains, though the final 95. Community Agency for Social Enquiry, obstacles may seem minor compared to the broader “A New Constitution for a New South Africa,” issues already resolved, they “lay at the heart of ( Johannesburg: CASE, 1996), cited in Heather what the ANC was trying to achieve, and what the Deegan, “A Critical Examination of the Demo- NP was trying to prevent. The question of single- cratic Transition in South Africa: The Question of medium instruction in schools, property rights and Public Participation,” Commonwealth & Compara- the employer’s right to lock out, all represented in tive Politics, vol. 40, no. 1 (March 2002), p. 47. To some way the National Party’s desire to maintain the question “Have there been any meetings?” 13 through the Constitution some of the privileges and percent answered yes, 63 percent answered no, and inequalities that had characterized apartheid. . . . 24 percent did not know. These were not matters on which the ANC was pre- 96. About half the submissions (1,001,246) pared to compromise.” Ramaphosa, “Negotiating a petitioned for Afrikaans as an official language, New Nation,” p. 82. 650,000 to keep the parliament in Cape Town, 89. These included the lockout clause, the 186,376 in favor of the death penalty, 42,069 against property clause, the death penalty, the appointment South Africa as a secular state, 19,854 against the of judges, the attorney general, language, local gov- legalization of abortion, 17,209 against including 154 Hassen Ebrahim and Laurel E. Miller

sexual orientation in the antidiscrimination clause, endnotes to the working draft. Gloppen, Battle over 17,778 for constitutional protection of animal rights, the Constitution, p. 261. and 14,475 for the right to own firearms. Gloppen, 105. One analyst finds very few signs that the Battle over the Constitution, pp. 257–58. public submissions directly influenced the text of the 97. Catherine Barnes and Eldred de Klerk, constitution. For example, of the major subjects of “South Africa’s Multi-Party Constitutional Nego- the petitions, only one—in favor of Afrikaans as an tiation Process,” Accord, no. 13 (2002), pp. 26–33. official language—is consistent with the final text, The authors note that about 10 percent of submis- though it is unlikely that this result is attributable sions came from organizations, about 0.6 percent to the petitions. Gloppen, Battle over the Constitu- from political parties, and the vast majority from tion, pp. 260–62. In comparison, Ramaphosa writes: individuals. “Clearly not every submission had an impact on the final product, nor did they substantially influence 98. Remark by Heinz Klug at working group some of the positions taken by the various parties. session of the U.S. Institute of Peace/UN Develop- But they did highlight some of the key concerns ment Program Project on Constitution Making, shared by ordinary South Africans, and allowed Peacebuilding, and National Reconciliation, Sep- South Africans to engage directly with the process tember 28, 2001, p. 143 of transcript (on file with of shaping their future.” Ramaphosa, “Negotiating a the U.S. Institute of Peace). See also Deegan, “A New Nation,” p. 81. Critical Examination,” pp. 49–51, noting that the 106. Metropolitan areas are urban areas that issues most South Africans wished to see addressed include commercial zones; urban areas are generally in the constitution concerned practical matters, residential in nature. such as the need for more jobs, more housing, better 107. For example, Professor Jeremy Sarkin schools, and crime control. of the Human Rights Committee, in a letter to the 99. Barnes and de Klerk state that submis- president of the constitutional court dated April 18, sions from organizations with links to parties or 1996 (on file), argued that “the final stages of the with specialized knowledge were seriously consid- constitution-making process have been character- ered, but the drafters did not use submissions from ised by closed political party negotiation (referred individual citizens systematically in the first phase, to as bi- or multilaterals), and it is in these forums in part because of the huge volume of submissions where political agreement on contentious issues has and in part because some of the issues raised seemed been reached. . . . Thus civil society has been effec- unrelated to the negotiating agenda. Barnes and de tively excluded from the last and crucial phases of Klerk, “South Africa’s Multi-Party Constitutional the process. This is particularly true of more mar- Negotiation Process.” ginalized groups. Moreover, civil society has not 100. According to the CASE opinion survey been afforded the opportunity to comment on ©(1996), Copyright only 38 percent of the population by over thethe whether Endowment the final package complies with the princiof- age of fifty, but 57 percent of the population ages ples which underlie a democratic nation.” Ironically, eighteen to twenty-four, believed that the govern- the Human Rights Committee, despite having filed mentthe genuinely United sought participation. States Cited in Dee- an Instituteobjection to the certification of of the Peace constitution, gan, “A Critical Examination,” p. 48. failed to appear at the court to argue its case. 101. Murray, “Negotiating beyond Deadlock,” 108. In the South African case, many of the pp. 107–11. parties participating in the multiparty talks that led to the interim constitution “used their membership 102. Ibid., p. 112. structures to consult with their constituencies on 103. Murray asserts that it was always clear key issues in the negotiations and to ‘bring them that the constitutional assembly would mediate the along’ in the process, thus involving them indirectly public’s views rather than directly incorporate them in the negotiations.” Barnes and de Klerk, “South in the constitution. In Murray, “Negotiating beyond Africa’s Multi-Party Constitutional Negotiation Deadlock,” p. 112. Process.” 104. The procedure for processing the- sub 109. Klug, “Participating in the Design,” missions was improved in the second phase over the pp. 34­–36. Klug observes that the debates and dis- first, making their consideration more manageable. cussions initiated by the constitutional committee These submissions were summarized, organized ac- contributed significantly to the development of the cording to the relevant section, and presented as ANC’s constitutional vision. Framing the State in Times of Transition 155

110. Remark by Heinz Klug at working 124. Sachs, “Creation of South Africa’s Con- group session of the U.S. Institute of Peace/UN stitution,” p. 676. Sachs also notes that the voice- Development Program Project on Constitution over summary approach to televising the proceed- Making, Peacebuilding, and National Reconcilia- ings was a compromise between banning television tion, September 28, 2001, pp. 178–79 of transcript altogether and allowing what some feared would be (on file with the U.S. Institute of Peace). play-acting for the cameras. 111. Klug, “Participating in the Design,” p. 42. 125. Rickard, “Certification of the Constitu- 112. Klug, “Participating in the Design,” tion,” p. 285. pp. 42–43. 126. Sachs, “Creation of South Africa’s Con- 113. See Carmel Rickard, “The Certification stitution,” p. 677. of the Constitution of South Africa,” in The Post- 127. Several elements of the text, in the Apartheid Constitutions, p. 224. Carmel Rickard was court’s judgment, failed to comply with the prin- responsible for reports on the certification process ciples. First, the right of individual employers to as legal editor of the Sunday Times. engage in collective bargaining was not recognized 114. See Sachs, “Creation of South Africa’s and protected. Second, the text failed to provide Constitution,” p. 676. that constitutional amendments require special procedures involving special majorities and did not 115. Constitution of the Republic of South ensure that the fundamental rights, freedoms, and Africa, Act 200 of 1993, sec. 71(3). civil liberties protected in the constitution were en- 116. Samuel Issacharoff, “Constitutionaliz- trenched by giving the relevant provisions enhanced ing Democracy in Fractured Societies,” Journal of protection from amendment. Third, the text did not International Affairs, vol. 58, no. 1 (Fall 2004), p. 83; adequately provide for and safeguard the indepen- Spitz, Politics of Transition, p. 427. dence and impartiality of the public protector and 117. Rickard, “Certification of the Constitu- the auditor general. Fourth, the failure to specify the tion,” pp. 224–25. public service commission’s powers and functions 118. Ibid., p. 225. rendered it impossible to certify that the commis- 119. Rickard, “Certification of the Consti- sion could exercise its powers independently. Fifth, tution,” pp. 225–26, also p. 209, note 7: “Initially, chapter 7 of the text failed to provide a “framework some concern was voiced by those disappointed in for the structures” of local government, did not pro- the make-up of the Court that it might be a lackey vide for appropriate fiscal powers and functions for of the ruling African National Congress. However, local government, and did not provide for formal even before the certification case was heard, the legislative procedures to be adhered to by legisla- Court had handed down judgments indicating that tures at local government level. Sixth, the text did not provide for “appropriate fiscal powers and func- these criticisms and concerns were misplaced.” © Copyright by the Endowmenttions for different categories of local government.”of 120. See Rickard, “Certification of the Con- Seventh, the text purported to place the Labor Re- stitution,” p. 285. lations Act beyond constitutional scrutiny, but did the 121.United As the interim constitutionStates gave no Institutenot incorporate the act’s ofprovisions, Peace thus impermis- details of the procedures to be followed, the court sibly shielding those provisions from constitutional had to define its own approach to its task. Gloppen, review. Eighth, the text similarly and impermissi- Battle over the Constitution, p. 210. bly purported to place the Truth and Reconcilia- 122. Submissions from the IFP and a cluster tion Act beyond constitutional scrutiny. Finally, the of white right-wing groups including the Conserva- powers and functions given to the provinces were tive Party and various religious, farming, and other substantially less than or inferior to those which the organizations was particularly significant because provinces enjoyed under the interim constitution. they “might have been expected to stay aloof from See summary of the September 6, 1996, judgment the process.” Rickard, “Certification of the Consti- of the court in Ebrahim, Soul of a Nation, Document tution,” p. 286. 36, pp. 627–30, and Spitz, Politics of Transition, 123. Judgment of the Constitutional Court, pp. 426–27. CCT 23/96, September 6, 1996. In re: Certification 128. Judgment of the Constitutional Court, of the Constitution of the Republic of South Africa, CCT 23/96, September 6, 1996, para. 31. 1996, 1996 (10) BCLR 1253 (CC) (First Certifica- 129. Sachs, “Creation of South Africa’s Con- tion judgment). stitution,” p. 677. 156 Hassen Ebrahim and Laurel E. Miller

130. Spitz, Politics of Transition, p. 427. Nation,” p. 75, noting that the ANC successfully 131. Rickard, “Certification of the Constitu- pressured the international community to maintain tion,” p. 286. sanctions against the South African regime in the 132. Spitz, Politics of Transition, p. 425. Re- period leading up to multiparty negotiations on the garding the important role of the constitutional transition. court, particularly during its first eight years, in set- 144. “Deadline for Big Changes June—U.S.,” tling questions concerning the transition to democ- Star, October 4, 1989. racy, see Ran Hirschl, Towards Juristocracy: The Ori- 145. One observer has commented, “It is safe gins and Consequences of the New Constitutionalism to say that the dialogue processes at the heart of the (Cambridge, MA: Harvard University Press, 2004), transition helped to establish a culture of peaceful pp. 29–30. negotiations entrenching and affirming a habit of 133. See Rickard, “Certification of the Con- constructive cooperation and coexistence, politically stitution,” p. 288. as well as economically.” De Klerk, “South Africa’s Negotiated Transition.” 134. On the critical issue of provincial pow- ers, the court found that “the powers and functions 146. Klug, “Participating in the Design,” of the provinces in terms of the amended text are pp. 31–33. still less than or inferior to those accorded to the 147. Spitz, Politics of Transition, p. 419. provinces in terms of the interim Constitution, but 148. See Heather Deegan, “A Critical Ex- not substantially so.” Judgment of the Constitu- amination of the Democratic Transition in South tional Court, CCT 37/96, December 4, 1996. Africa: The Question of Public Participation,”Com - 135. Rickard, “Certification of the Constitu- monwealth and Comparative Politics, vol. 40, no. 1 tion,” pp. 288–89. (March 2002), pp. 43–60. Deegan observes that the South African government since the transition in 136. See, e.g., the chapters on Namibia, Al- 1994 has stressed participatory democracy, but she bania, Bosnia, Cambodia, East Timor, Afghanistan, finds uneven results. and Iraq in this volume. 149. Moreover, Haysom observes that “the 137. For example, the panel of constitutional liberation movements recognized the futility of experts traveled to Europe in November 1996 to at- inheriting a wasteland, of capturing the bank only tend workshops in Britain and Germany in order to to find the safe empty. The members of the libera- exchange ideas with international experts on tech- tion movements in exile had seen at first hand how nical issues in the new constitution. Other examples neighbors such as Angola and Mozambique had are provided elsewhere in this chapter. been reduced to extreme poverty as a result of a 138. Haysom, “Special Features and Mecha- flight of capital and skills, and a long and debili- ©nisms,” Copyright p. 106. by thetating Endowment civil war.” See Hayson, “Special Features of and 139. Sachs, “Creation of South Africa’s Con- Mechanisms,” p. 93. stitution,” p. 689. 150. Remark by Nicholas (Fink) Haysom at the140. OverUnited the years, there were States several failed working Institute group session of the U.S.of Institute Peace of Peace/ attempts at international mediation, including an UN Development Program Project on Constitution effort proposed by the Commonwealth Eminent Making, Peacebuilding, and National Reconcilia- Persons Group in 1986. See Hatchard and Slinn, tion, September 28, 2001, pp. 162–63 of transcript “Path towards a New Order,” p. 2. (on file with the U.S. Institute of Peace). 141. De Klerk, “South Africa’s Negotiated 151. Remark by Haysom at working group Transition.” session, pp. 174–75 of transcript (on file with the 142. Ibid. U.S. Institute of Peace). 143. Haysom notes that the ANC used its in- 152. Ibid., pp. 163–64 of transcript (on file ternational credibility to leverage international reso- with the U.S. Institute of Peace). lutions and declarations on the route negotiations 153. See, e.g., Sparks, Tomorrow Is Another should follow from the Organization for African Country, pp. 81–84. Unity, the United Nations, and the Commonwealth. 154. Remark by Haysom at working group See Hayson, “Special Features and Mechanisms,” session, pp. 181–82 of transcript (on file with the p. 95. See also Ramaphosa, “Negotiating a New U.S. Institute of Peace). Framing the State in Times of Transition 157

155. A number of participants in the process tant to build a relationship of trust with [the ANC]. have commented on the importance of personal It was therefore essential that I should establish encounters across the political divide to the suc- such a relationship with Cyril Ramaphosa.” Meyer cess of the process. See, e.g., Leon Wessels, “The and Ramaphosa were their respective parties’ chief End of an Era: The Liberation and Confession of negotiators. an Afrikaner,” in The Post-Apartheid Constitutions. 156. See, for comparison, the chapter on Iraq See also Meyer, “From Parliamentary Sovereignty in this volume, in which the author identifies prob- to Constitutionality,” p. 69, in which Roelf Meyer lems associated with the Sunni negotiators’ lesser comments that “you must create personal interac- negotiating skill and preparation than their coun- tions with your opponents,” and that “it was impor- terpart Shia and Kurds.

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