The storm over the Interim Bill of Rights
On 2 February 1993, a storm broke out between negotiators over the question of the Bill of Rights in the Interim Constitution. On that day, the government unilaterally unveiled its own Charter of Fundamental Rights. Justice Minister at the time, Kobie Coetsee, said that in the proposed Bill, “No person shall be favoured or prejudiced by reason of race, colour, language, sex, religion, ethnic origin, social class, birth, political or other convictions or disabilities or other natural characteristics”. He promised to expunge all laws from the statute book which fell foul of the Bill of Rights.
While the Bill was welcomed by some for enshrining rights that “the National Party had trampled on for 44 years”, it raised the anger of many. Tony Leon, Democratic Party spokesperson on justice, said that it was disturbing that it made specific provision for the death penalty. He opposed the detention-without-trial provisions and asked how Coetsee thought the government could spend more than R1 million of taxpayers’ money to promote its draft Bill of Rights. The ANC slammed the Bill as ‘an attempt to interfere with the negotiations’. The ANC constitutional law expert Kader Asmal described the NP’s Charter as a ‘cynical, tendentious and deceitful exercise in public relations which uses the language of rights to obscure the government’s real purpose, which is to enable privatised apartheid to replace official apartheid’. The most glaring examples of this in Asmal’s opinion were the absence of the right to vote, the retention of capital punishment, the retention of detention without trial for a period of ten days, and the refusal to prohibit discrimination against homosexuals.
Dullah Omar, a member of the ANC’s Constitutional Committee, also opposed the manner in which the Bill of Rights was introduced by the National Party:
To impose a bill of rights in a situation of inequality, oppression and apartheid is to entrench the rights of the rightholders and the rightlessness of the rightless. Without the right to vote, how can a bill of rights have any meaning? … to introduce a BoR in the context of an apartheid constitution is to abuse the concept of a BoR and diminish the value of such a document.
Cyril Ramaphosa, then ANC Secretary General, echoed these sentiments: “A Bill of Rights will enjoy legitimacy and authority only if it were drafted and adopted by an elected constituent assembly.” The ANC also saw the document as an abuse of public funds and asked, why if the government wanted to be even-handed, did it not circulate the ANC, the DP and the IFP bills of rights? In the face of this onslaught the NP’s document went down like a lead balloon.