ELEMENT 1 - VALUES
It was necessary for the drafters to establish the system of values that would underlie the structures of government and the manner in which they were to function. These values were set out in a powerful preamble as well as in the founding provisions in the opening sections of the Constitution such as universal suffrage, equality, freedom, dignity and the rule of law.
There was consensus that there would be a comprehensive Bill of Rights that included fundamental rights ranging from the right to equality to freedom of movement and information. Notable in the Bill of Rights, was the agreement reached on rights that were unusual in constitutions, for example, the right to a safe environment; the rights of access to information; the right to just administrative action. Many constitutions deal with the structure of government in the country and then add a Bill of Rights. In South Africa, the drafters decided that the Bill of Rights should be in a prominent position before the structures of power.
International law was also given a high degree of recognition and its principles expressly made applicable to the security forces.
One consequence of agreeing on the above system of values was in effect to outlaw capital punishment. The drafters could have expressly authorised the death penalty. This would have overruled a decision by the Constitutional Court that capital punishment violated the rights to life and dignity and not to be subjected to cruel, inhuman and degrading punishment. By choosing not to do so, the drafters tacitly accepted that the Court’s decision would now stand in perpetuity.
Element 2 - Structures of Government
There are two very distinctive features of the structural foundations of government that the drafters agreed to in the constitution-making process. The one is a parliamentary type presidency – a system in which the president is not elected directly by the people but is instead directly accountable to Parliament and can be dismissed by Parliament.
In this respect, the drafters followed the example of the Indian Constitution where parliament chooses the Prime Minister who has a powerful position as head of government, but then there is a separate President who receives foreign diplomats. The South African constitution differs in that it combines the role of head of government with head of state answerable to Parliament. The drafters took this path to ensure that the main repository of public power would be Parliament and not an individual.
Coupled with that, the drafters agreed on an electoral system that results in general in proportional representation. This formulation would allow for parliament, provincial and local authorities to be elected either completely on the basis of lists or on the basis of a mixture of lists and directly elected representatives, provided that the final outcome reflected the degree of electoral support. This agreement was unusual, as Commonwealth countries overwhelmingly ascribed to the constituency system, based on ‘first-past-the-post’. The ANC understood that with 60% of the votes, the ANC would get 80% of the seats. This would ultimately be undemocratic and unfair to smaller parties and hold back on the creation of a sense of national unity. The ANC and other parties agreed that proportional representation would favour inclusion and foster the notion of acceptance of the Constitution by all.
A system of co-operative governance was agreed upon based on national, provincial and local government spheres. Instead of having a second chamber called a senate directly elected by the people, the second chamber was to be called the National Council of Provinces. The membership was to be made up of persons representing the provincial governments.
A third structural feature is the emphasis given to the creation of an open and democratic society with continuing public involvement in the legislative process. The drafters agreed to oblige future lawmakers to have ‘regard to representative and participatory democracy, accountability, transparency and public involvement’ when making law, thus drawing on the lessons that were learnt from the unique public process of constitution-making that was being undertaken by the Constitutional Assembly.
The strong emphasis in the Constitution on the rule of law and agreement around the creation of a Constitutional Court, granted wide remedial powers with relatively easy public access.
Another unique element that the drafters agreed to, was to provide special constitutional protection for institutions created to guard democracy. These include the Independent Electoral Commission, the Public Protector, the South African Human Rights Commission, the Commission for Gender Equality, the Commission for the Promotion and Protection of the Rights of Linguistic, Religious and Cultural Communities and the Auditor General. The drafters especially protected the independence of these institutions in the Constitution.
Element 3 – Equality and redressing imbalances created by Apartheid
The first fundamental right agreed to, is the right to equality. The strong representation of activist women in the Constitutional Assembly influenced the drafting of this value. Non-sexism was put on a par with non-racism as a foundational value. The Bill of Rights went on to forbid discrimination on the grounds of sex, gender and marital status.
Other categories of prohibited discrimination are very wide, ranging from race to age and disability. Drafters expressly agreed on redress through forms of affirmative action. They agreed to connecting freedom rights with bodily protection. Not only did they agree to exclude detention without trial, they agreed that all persons should have the right to be safe from private as well as state sourced violence. People will have the right to make decisions on reproduction too. The drafters also included socio-economic rights as fully justiciable – that is, enforceable by the Courts.
Trade unionists and others deeply involved in the struggles of workers were also well represented in the Constitutional Assembly. One consequence of this is the comprehensive provisions dealing with the fundamental rights of workers, including the right to strike. The disagreement over whether or not employers should have a corresponding right to lock out workers, became one of the thorny issues that kept drafters debating into the small hours of the nights.
Element 4 – Unity in diversity
The Preamble of the Constitution emphasises that South Africa belongs to all who live in it, united in diversity. Unity is achieved in the political system by the principles of non-racism, non-sexism and having a common voter’s roll. At the same time, the drafters acknowledged the multi-cultural, multi-linguistic and multi-faith character of South Africa in a number of ways.
They comprehensively dealt with language rights. The rights of cultural expression are guaranteed in a number of ways and freedom of belief in its many manifestations is also given strong protection. Similarly, customary law is recognised as an original source of law on a par with common law, which had been derived from Roman Dutch law and the English Common law. All of these areas, however, were made subject to the Bill of Rights and its equality provisions.
