A New Beginning: Introducing the South African Constitution and Bill of Rights
| DOI | 10.1177/092405190001800104 |
| Author | Rassie Malherbe |
| Date | 01 March 2000 |
| Published date | 01 March 2000 |
| Subject Matter | Article |
A New Beginning: Introducing the South African Constitution
and Bill of Rights
Rassie Malherbe'
Abstract
Few would argue that the democratisation
of
South Africa is one
of
the most fascinating
examples
of
constitutional engineering during the latter
half
of
the 20th century. This
article recounts the negotiating process leading up to the adoption
of
the Constitution
of
1996, and highlights the main features
of
the Constitution. The features discussed are
majority government, the principle
of
constitutional supremacy, the content and application
of
the Bill
of
Rights -with some emphasis on its impact so far on social change
-,
the
role
of
the independent judiciary, the principle
of
co-operative government which governs
the relationship between the three spheres
of
government. and the ways in which the
diversity prevalent in the South African society has been accommodated. Some comments
are also made on the necessity for the creation
of
a human rights culture to support the
new Constitution. The article concludes with the remark that, although serious obstacles
remain, a solid start has been made on the road to a constitutional democracy with justice
for all.
I Introduction
Few would argue with the view that the democratisation of South Africa remains one of
the most fascinating examples of constitutional engineering during the latter half of the
20th century. There are several reasons for this. First, it involved the overthrow of the
apartheid system that offended the world and occupied its attention for so long. Secondly,
it took place almost totally peacefully, a rare achievement in this volatile century. Thirdly,
as a truly democratic constitutional State was established, at least on paper, it was not, as
in so many other instances, simply a case
of
power changing hands from one autocratic
regime to another. The South African Constitution
of
1996 represents the new beginning
that has been made, and although it remains to be seen whether the transition can be
concluded successfully, constitutionally, at least, a sound start has been made.
This article briefly recounts the negotiating process leading up to the adoption of the
Constitution
of
1996, and highlights the main features of the Constitution, with some
emphasis on the adoption and implications of the principle
of
constitutional supremacy,
the content and application of the Bill of Rights, the role of the independent judiciary, and
the principle
of
co-operative government which governs the relationship between the three
spheres of government. These features lay the constitutional foundation for the new State
and should be given due consideration in any discussion on the constitutional transition
that took place in South Africa.
• BA, LLB (Stell), LLD (RAU). Professor of Public Law, Rand Afrikaans University, Johannesburg.
Netherlands Quarterly
of
Human Rights, Vol. 18/1, 45-65, 2000.
'C Netherlands Institute
of
Human Rights
(81M).
Printed in the Netherlands. 45
NQHR I
/2000
II The Negotiations
By the end
of
the 1980s, South Africa was on the brink
of
large-scale disruption and it
was evident that apartheid had to come to an end. The turning point was in 1990, with the
unbanning
of
organisations like the African National Congress (ANC) and the Pan-
Africanist Congress (PAC) and the release or return to South Africa
of
their leaders, which
dramatically accelerated the process
of
constitutional change. Preliminary talks commenced
shortly after and in December 1991, the majority
of
political parties and organisations
signed a declaration
of
intent in which they committed themselves to drafting a new
democratic Constitution through negotiation.' Eventually, a two-stage process was
adopted, in terms
of
which the existing Parliament would adopt (legitimise) a negotiated
interim Constitution, after which a newly elected non-racial Parliament would draft the
final Constitution. Accordingly, during the first half
of
1992, negotiations took place on
the principles to be included in a new Constitution and the necessary transitional
arrangements. During 1993, agreement was reached on the particulars
of
an interim
Constitution, on arrangements to ensure free and fair elections, and on the establishment
of
a transitional executive council to supervise the implementation
of
the interim
Constitution.' The interim Constitution and other laws to facilitate the transitional process
were adopted by Parliament by the end
of
1993. It was also agreed that elections for the
interim Parliament would take place during April 1994,after which the interim Parliament,
acting as a Constitutional Assembly, would immediately begin to draft the final
Constitution within two years. The interim Constitution was promulgated on 28 January
1994 and took effect on 27 April 1994.3
The elections for Parliament and the new provincial legislatures took place from 26 to
28 April 1994. The elections led to the establishment
of
new, non-racial legislative,
executive and judicial institutions in the national and provincial spheres, a process that
would continue for a considerable time." President Mandela was elected formally by
Parliament and assumed office on 10 May 1994, after which the other members
of
the
executive and other office-bearers were elected and designated.
From 1994 to 1996 the Constitutional Assembly concentrated on drafting the new
Constitution.SThe process was firstly characterised by its comprehensiveness and
intensity. In terms
of
the number
of
people kept occupied for so many months, the mass
of
inputs and information processed, the volume
of
paperwork produced, the extent
of
a.E.
Devenish, 'The making of the interim Constitution', Tydskrifvir Hedendaagse Romeins-Hollandse Reg
(THRHR), 1997, Vol. 60,
No.4,
p. 613 et seq; D. van Wyk, 'Introduction to the South African Constitution',
in: D. van Wyk et al. (eds), Rights and Constitutionalism: The New South African Legal Order, Juta,
Kenwyn, 1994, p. 131 et seq.
2See on the origins
of
the interim Constitution in general, the various contributions in: B. De Villiers (ed.),
Birth
of
a Constitution, Juta, Kenwyn, 1994. See also the remarks by H. Klug, 'Historical background', in:
M. Chaskalson et al. (eds), Constitutional Law
of
South Africa, Juta, Kenwyn, 1996, para. 2.4(c).
3Constitution of the Republic of South Africa Act 200 of 1993,as promulgatedin: Government Gazette 15466
of 28 January 1994.
4For various reasons, the local sphere took a while longer and local elections were only held in November
1994 and early in 1995.
SFor an account
of
the process, see H. Ebrahim, 'The Constitutional Assembly - drafting South Africa's new
Constitution', International Roundtable on Democratic Constitutional Development, Commonwealth
Secretariat, Cape Town, 1995, pp. 22-32; Z. Yacoob, 'The constitution-making process: an overview', The
Human Rights and Constitutional Law Journal
of
Southern Africa, Vol. I,
No.2,
1996, p. 18.
46
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