Submission Process
Mirroring the Constitutional Assembly’s drive for transparency and public participation, the Court extended an open invitation to all South Africans to submit their objections. The certification process also provided an opportunity for the Inkatha Freedom Party (IFP) to rejoin the constitutional debates. Although it had not participated in the process of formulating the Constitution, it took part in the certification process, challenging a wide range of provisions, particularly those that dealt with the division of power between the national and provincial governments.
The Court also went out of its way to invite public participation in the certification case by asking for written objections to the Constitution. Political groupings that had hitherto stayed aloof from the constitutional process, as well as many civic society organisations and individuals, became directly engaged with the new constitutional order.
This letter from President Chaskalson, which gave detailed instructions as to how objections should be specified, appeared in many newspapers. Constitutional Court Library
A plethora of written submissions arrived at the Court building. Eighty-four special interest groups and members of the public – ranging from the South African Police, human rights NGOs, representatives of traditional leaders, employers’ associations, trade unions and campaigners who favoured the death penalty – all lodged objections with the hope of having the text of the final Constitution changed. South Africans were once again demonstrating their eagerness to have their views and expectations heard.
Five of the political parties that had participated in the Constitutional Assembly also submitted written objections. Their ‘yes’ vote in Parliament on 8 May 1996 was obviously not an indication of their full agreement with every clause in the Constitution that they had helped to write. Certification presented another opportunity for them to have their opinions more fully incorporated in the final text. Other parties who had stood aloof from constitution-making now decided to invest in the process. The IFP, which had stormed angrily out of the CA, seized the moment to have their voice heard. So did the Conservative Party along with several other conservative groups.
In all, the Court received 155 objections to the text being certified. A special room had to be set aside and extra staff hired to process the 2 500 pages of submissions that piled up as well as the extracts from judgments, textbooks and other publications that were annexed.
I remember when we received all of these submissions, they were countless, there were boxes and boxes and the clerks had to organise and sift through and summarise all of them … The submissions came not only from the big players, not only from the major political parties but from ordinary people in the street who wanted to have a say about something in the Constitution.
We were under the whip because this was an important process. There was a lot of work to be done and it needed to be done as fast as possible. We, the Constitutional Court, couldn’t take long in coming to its conclusion on the process of the finalisation of the Constitution.
There was a lot of pressure and every single clerk was involved in the work. Each chamber was allocated sections of the Constitution, and then it would be all debated and put together.
The clerks were there every night till very late at night … We enjoyed working till whatever hour. It wasn’t a sense of oppressive work environment; it was just a sense of being a part of something bigger.
Adila Hassim
then law clerk at the Constitutional Court
While the content of all the submissions were taken into account, the Court ultimately, afforded an audience to twenty-seven groups that had
submitted objections.
We were all acutely aware of the heavy responsibility and that is one of the reasons that we invited such a wide spectrum of people to make written submissions and make oral presentations.
