South Africa’s First Constitution 1910
1910
Original version of the preamble to the Union Constitution, adopted on 31 May 1910. Parliament of South Africa
When delegates from all four provinces met to draft a new constitution at the National Convention of 1908–9, they were also giving shape to the idea of nationhood. For most of the delegates the nation imagined was an exclusively white nation. Black people, who were excluded from the process, watched as their future was decided for them.
Many compromises were made to ensure that the ingrained mistrust between the Boers and the British didn’t undermine the negotiation process. On the issue of union or federation, Smuts argued, successfully, that the former would facilitate greater unity between the former enemies and encourage loyalty through shared symbols and national identity.
The Native Delegates from different parts of Natal, while highly appreciating the Government’s desire and intention to give the Native people of the Colony of Natal Parliamentary representation by the nomination of four members to represent them in the Legislative Council, would most respectfully point out that such members cannot be truly said to be their representatives but Nominees of the Governor in Council; and would, therefore most humbly beg to ask for the extension of the Franchise to the Native Races of this Colony.
General Jan Smuts
Then statesman and military leader and later Prime Minister
Black people wrote petitions to air their grievances and set out their demands in a ‘gentlemanly’ fashion, but these were all but ignored. Although some Cape and Natal liberals argued for their colonies’ qualified, colour-blind franchise (then referred to as the non-white franchise) to be extended to the former Boer Republics, the majority of delegates were opposed to this. In the end the Convention decided that each province would retain its existing franchise system and that membership of Parliament would be restricted to ‘British subjects of European descent’, even in the Cape. FS Malan, one of the more committed Cape liberals, spoke prophetically of the years of conflict that would ensue from this decision.
People spoke about the necessity to unite the white races first and then tackle the Native franchise question, but a union of this kind would not be a genuine union. The germs of discord would continue to exist.
FS Malan
Cape Liberal
The proposed Union Parliament was based on the Westminster system, which made the legislature, consisting in South Africa’s case of the House of Assembly and the Senate, supreme in authority. This meant that Parliament, elected by the white minority, could enact any laws it chose subject to the assent of the Governor-General. The founding constitution, the South Africa Act, could also be amended by a majority vote in both Houses of Parliament, but changing the voting requirements enshrined in the Act ‘or the equality of the English and Dutch’ languages, required a two-thirds majority. The judiciary could only interpret legislation, not comment on its legality or determine whether laws passed were just or not. In the years to come, the apartheid regime used this form of government to its advantage, enacting draconian laws that stripped away people’s rights in every part of their lives.
The South Africa Act outraged both black and liberal-minded white people. AK Soga, editor of Izwi Labantu (Voice of the People), wrote:
This is treachery! It is worse. It is successful betrayal, for the Act has virtually disenfranchised the black man already even before the meeting of the Union Parliament, which will complete the crime by the solemn vote of the two Assemblies.
AK Soga
Then Editor of Izwe La Bantu
The Schreiner Delegation, 1909. National Library, Cape Town
William Schreiner, a former Cape Prime Minister and member of a liberal family, led a deputation to England in 1909 to try to persuade the British government not to pass the draft South Africa Act. Their attempts were unsuccessful. On 20 September 1909, the British Parliament passed the South Africa Act, which effectively became South Africa’s first constitution when the Union came about on 31 May 1910. This was the beginning of a constitutional and political system that would effectively create citizenship for enfranchised whites and a subjected colonial status for the disenfranchised black majority.
31 May 1910
A guard of honour marks the Opening of Parliament, Cape Town, 1910. Parliament of South Africa
An Act to Constitute the Union of South Africa
South Africa’s first ‘colour-bar’ constitution was just the start of a battery of segregatory laws designed to divide the nation into white citizens and black subjects. With each new legislative act, black people felt increasingly like outcasts in their own country. With each new rebuff, their polite pleas for an inclusive democracy became more outspoken. With each of their demands, the white government became more oppressive. It would be 84 years before black South Africans would be able to vote and participate in drawing up a democratic Constitution.
