Towards a South African Constitution
| Published date | 01 July 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01957.x |
| Date | 01 July 1994 |
| Author | Hugh Corder |
THE
MODERN LAW REVIEW
Volume
57
July
1994
No.
4
Towards
a
South African Constitution
Hugh
Corder*
Introduction
By the time that this article is published, South Africa’s first democratically-
elected government ought to be in place. Like the process on which it concentrates,
this piece has been written over a long period. My brief was to attempt to describe
how a new constitution for South Africa was being produced and to analyse the
‘final settlement,’ with the emphasis on the latter. That such a suggestion could be
made (and agreed to) as early as April
1992
and that no one is able even in early
1994
to write with any confidence about a ‘final’ constitution for the Republic of
South Africa are measures primarily of the extraordinary difficulties, caused
largely by the legacy of apartheid, which have confronted the political negotiators.
The result is that, despite four years of political rhetoric and constitutional talks,
the
1993
South African Constitution is deliberately and avowedly a
transitional
instrument, a means whereby a democratically-elected legislature can act legally to
draw up a ‘final’ constitution. Yet, as will be seen, this same legislature (and the
executive drawn from its ranks) is entitled by law to govern for a period of five
years, even though a ‘final’ constitution should have been agreed on after only two
years. In addition, this ‘transitional’ constitution contains the immutable
foundation stones of the ‘final’ constitution.
While the ravages of apartheid are the chief cause of this two-step approach, the
political inability to move directly to a ‘final’ constitution reflects the influence on
constitutional change of the following factors in particular: the volatility of any
process of transition from autocracy towards democracy; the extreme disparities of
socio-economic welfare which characterise South African society; the vicious
blood-letting which has been employed by all the major groupings in their fight for
political dominance, and their initial reluctance to accept the reality of ‘power-
sharing’; and a desperate (perhaps wishful) desire by the huge majority of ordinary
South Africans for a quick end to injustice, tyranny and violence, in all its forms,
*Professor of Public Law, University of Cape Town.
The writing of this article would not have been possible had
I
not been a member of the ‘Technical
Committee on Fundamental Rights during the Transition,’ which served
the
negotiating process from May
to November
1993.
I
am
indebted to my colleagues, Christina Murray and Alfred Cockrell, for constructive
criticism and encouragement.
108
Cowley Road, Oxford OX4
IJF
and 238 Main
Streef.
Cambridge, MA 02142, USA.
@
The Modem Law Review Limited 1994 (MLR 57:4, July). Published by Blackwell Publishers,
49
1
The Modern Law Review
[Vol.
57
even if this can only be achieved by ‘supping with the devil.’
So
what follows is a
description of a process of constitutional compromise which has, as its aim, the
delivery of a lasting constitution for South Africa by
1996.
An important obstacle in the way of anyone wishing to describe the process of
producing a new constitution for South Africa is the fact that, despite protestations
and some isolated efforts to the contrary,’ the field of political negotiations over
the past four years has been abysmally opaque. While the proceedings of the
discredited and increasingly ineffectual Parliament continued to be reported
verbatim in the pages of Hansard and to receive relatively thorough coverage in the
media, information on the negotiations available to even the well-informed
layperson or academic commentator has been almost non-existent. Only those
participating directly in the process have had the opportunity of a better
understanding of the structures, procedures and arguments, and few of these
people seem to have availed themselves of this privilege.’Much of the scant
informed analysis which has been published has appeared in ephemeral sources,
which tend to promote a particular party-political point of view, and
so
must be
treated with some care.
On the other hand, mountains of proposals, reports, agendas, submissions,
comments and
so
on were produced at the World Trade Centre near Johannesburg,
the site of much of the negotiating activity. A detailed study would require the
combined efforts of a team of researchers over a sustained period, beyond the
scope of this article. My intention in what follows is more limited: to sketch the
background conditions and the major milestones of the process of engineering a
constitutional settlement for South Africa since
1990;
briefly to describe some of
the main features of the package of measures which make up the ‘Constitution’ of
South Africa
(1993);
and to analyse this package and speculate on the likely path
which lies ahead.
In seeking to realise this task, I assume as a point of departure that this intense,
often violent and ultimately wearisome process has been directed at creating the
procedures and structures for allowing fiercely combative opponents to
compromise
so
as to move South Africa from autocracy to democracy. In other
words, what has occurred thus far has been a process of political transition, within
the ‘old’ constitutional framework, in order to produce the much-vaunted
‘levelling of the playing fields’ of political activity under a ‘transitional’
constitution, during the currency
of
which a ‘final’ dispensation will be drafted and
agreed upon. I will suggest at the end that the series of legislative measures which
is the outcome of the negotiations to date provides the basis, at least formally, for a
constitutional democracy.
In addition, I approach this subject with more than a passing interest in the way
in which the law and ‘rights’ can and should be used to ease the process of political
change in intensely contested terrain. South African lawyers, and particularly
those at universities, participated vigorously in debates about the role of law as a
‘site of struggle’ in the
1970s
and
1980s,
stimulated by similar arguments in
Europe.* It might be that the events of the past four years hold lessons in this
respect, too.
1
The complete coverage on public television of the plenary sessions of CODESA
I
and
II
(see
below)
and the publications which are referred to in the notes which follow provide singular exceptions.
2
See
Corder (ed),
Essays
on
Law
and
Social
Pracrice
(Cape Town: Juta,
1958),
which contains several
contributions on this theme. See also the works referred
to
in ns
254-263.
492
D
The
Modern
Law Review
Limited
1994
July
19941
Part One: The Negotiations
A
The Socio-Economic Context
Towards a
South
African Constitution
Few people will need reminding at
a
general level’of the historical background
against which the negotiations about a constitution for South Africa have occurred
since
1990.
Lawyers in the common-law tradition in particular will be familiar
with the court battles over the removal of the franchise from African3 and
coloured4 men in the
1930s
and
1950s,
as well as the critical appraisal5 of the
performance of the judiciary in the face of legislative (and, increasingly,
executive) injustice from the late
1950s
to the
1980s.
All those concerned with the
protection of human rights and the most basic concept of justice will be aware of
the diabolical effects of the policy of systematic racism through legislation and
administrative fiat on every facet of the daily lives of most South Africans, and of
the enormous suffering which it caused over several decades. Control of political
action and thought became most acute during the successive states of emergency6
which endeavoured to crush opposition to the implementation of the
1983
Con~titution,~ perceived by the ruling regime ironically as a move away from
apartheid government.
What is possibly less notorious is the more immediate socio-economic context in
which political activity has occurred since early
1990.
It is safe to state that,
despite a substantial relaxation of political repression at the formal level, the
average South African, both black and white, is worse off in most respects than he
or she was four years ago, for two main reasons.
First, on the economic front, the effects of international trade and financial
sanctions, a continuous flight of capital, a reluctance to invest from abroad and by
those at home (due in most part to political uncertainty), an average annual
inflation rate of about
15
per cent throughout the
1980~,~
a devastating drought
which necessitated grain imports and rapidly increasing unemployment have
combined to impoverish even those people with jobs, let alone those with~ut.~
The more promising economic indicators of early
1994
have not yet filtered
through to the benefit of the average person. The exposure of widespread
corruption and maladministration in the public and private sectors has further
3 Any writing on South African constitutional matters must refer
to
persons by their ‘race classification’
from time to time. In this article, the groups will
be
referred to as African, coloured (mixed race),
Indian
or
white, without an element of approval. In regard to the African franchise, see
R
v
Nabbe
(1930) AD 484 and
Ndlwana
v
HoJineyr,
N.O.
(1937) AD 229.
4
See
Ham’s
v
Minister
of
the Interior
(1952) (2) SA 428 (AD) and
Collins
v
Minister
of
the Interior
(1957) (1) SA 552 (AD).
5
The two most important of which are Mathews,
Law, Order
and
Liberry
in
South
Africa
(Cape Town:
Juta, 1971) and Dugard,
Hw~n
Rights
and
the
South
African
Legal
Order
(Princeton: Princeton
University Press, 1978).
6 Which applied nationally from 1985-90.
7 Republic of South Africa Constitution Act, I10 of 1983, which set up a tricameral Parliament, with
Houses for whites, coloureds and Indians, but intended finally to close the door on African
participation in central government in South Africa. This Act formed the basis of the constitution in
South Africa from 1984 to late April 1994.
8
Although beginning a decline to about
10
per cent in mid-1993:
see
SAIRR,
Annual
Survey oface
Relations
1992193
(Johannesburg:
SAIRR,
1993) pp 531
-
532. The food inflation rate varied between
16.1 per cent and 28.2
per
cent in the years 1990-92.
9 The National Manpower Commission estimated in 1991 that about
40
per cent of South Africa’s
economically active population was without formal employment
-
about 5.4 million people: see
SAIRR,
op
cir
p 178. Poverty has reappeared among whites for the first time since the 1940s.
0
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1994
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