20/19 DAYS AWAY
A marathon all-night session of the Constitutional Committee was held on Thursday night, 18 April 1996, starting at eight in the evening and ending at 5.47 on a chilly Friday morning. This was later remembered as one of the most vital and dramatic days of the entire process. At the start of the meeting, the Chairperson announced in grim tones:
This is the night when we traverse the last mile … All the time we have wasted over the past two years catches up with us tonight. Before now and the morning we have to give the drafters a complete Constitution for printing over the weekend.
Cyril Ramaphosa
then Chair of the Constitutional Assembly
Throughout the night the Constitutional Committee convened on an almost hourly basis, receiving reports from sub-committees, multilaterals and bilaterals.
9:30 PM
The night did not start well. At a meeting between the ANC and the NP on the education clause, the two parties could not reach agreement. The NP was still arguing for the protection of single-language institutions to protect Afrikaans medium schools, while the ANC insisted, as they had done many times before, that this would perpetuate inequalities in education by keeping non-Afrikaans speaking black children out of what were well-resourced public schools. The conversation between the representatives of the two parties revealed their utter frustration and despair:
Cyril Ramaphosa (ANC): “What are we going to do, Piet?”
Piet Marais (NP): “I don’t know. That’s why we are sitting so many people around the table now, to try to resolve the matter. I believe we must admit that we are more or less deadlocked.”
Cyril Ramaphosa (ANC): “We have to adopt the Constitution on the 8th and how do you go to the 8th and deadlock on a simple issue like this?”
Piet Marais (NP): “I’m just the messenger.”
Coming out of the meeting room, Valli Moosa reported: “The main negotiator on this matter, Mr Piet Marais, had simply thrown up his hands in the air and said, ‘I can’t negotiate this matter further’. They were simply at a loss, completely paralysed, with this particular issue. We were hoping that we would have been able to crack the education issue. The National Party was particularly obstinate, and I would say irrational when it came to the education clause.”
Piet Marais, on the other hand, told reporters: “It was the end of the process. We had to address the issue and stop beating about the bush and say, ‘This is it,’ and so for the first time, I said, ‘I’m afraid it appears as if we are deadlocked.’”
12 AM
At last, at midnight, there was some progress to report. One of the first of three historic agreements of the night was reached. Willie Hofmeyr announced to the Constitution Committee that there was ‘something of an agreement on the property clause’. Not everyone was satisfied but they were happy to proceed, he said. Despite the tentativeness, Ramaphosa was delighted, declaring that ‘everyone involved deserves an Order of Merit of Good Hope’.
In the corridors, Shelia Camerer told reporters that there were ‘serious shortcomings’ in the property clause, while Dene Smuts vowed that the Democratic Party would continue to fight the issue: “We won’t let this rest. We will, when the certification process ensues in the Constitutional Court, see whether something can be done.”
The Democratic Party was distressed because the strong protections given to property in the interim Constitution had been completely watered down and replaced by a forceful constitutional commitment to land restitution and reform. The ANC, on the other hand, had objected to the constitutionalising of the requirement to pay compensation for expropriation of land for purposes of historic redress. What brought the ANC on board was the inclusion of a clause that would permit Parliament to pass a law overriding the necessity for compensation if such law would be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
2:20 AM
In the early hours of the morning, another momentous breakthrough was reached on what the Freedom Front called ‘the sensitive issue of Afrikaner self-determination’. Representatives of the FF, NP and ANC entered the old Assembly chamber. They had been in a three-hour meeting in the VIP dining room where, as the FF’s Dr Corné Mulder said:
The adrenalin was pumping at that stage because you realise if things go wrong now, it’s got major implications for a political party itself who can’t achieve its objectives.
Dr Corné Mulde
then Freedom Front member of the Constitutional Assembly
The sombre faces of the negotiators reflected the magnitude of what had just transpired. In an emotional voice, Mulder announced that they had just agreed to include in the Constitution a Commission for the Promotion and Protection of Cultural Rights, which would promote respect for the cultural, religious and language rights of communities and tolerance on the basis of equality and free association. The inclusion of this clause meant that the conservative constituencies were now fully on board with the final Constitution – or so they thought.
This is a moment of special historical significance. There hasn’t been a moment that has united us like this one has done … When we struck agreement, everyone was overcome with emotions. When I took a close look, I could see traces of tears in their eyes. I believe that we are now irrevocably on our way to resolving every outstanding issue in the new Constitution.
CYRIL RAMAPHOSA
then Chair of the Constitutional Assembly
It was a brave move for the ANC … The big task is to arrive at implementation, but the ice is broken.
Constand Viljoen
then Freedom Front member of the Constitutional Assembly
It proves that South Africa is a country with a big heart.
Ken Andrew
then DP member of the Constitutional Assembly
Everyone claims victory.
Roelf Meyer
then NP member of the Constitutional Assembly
2:40 AM
Dr Blade Nzimande entered the committee room bearing evidence of a third historic breakthrough on an issue that had been deliberately left aside until the end of the process. Nzimande and the NP’s Dr Boy Geldenhuys, with the help of ANC researcher Kate Savage, had agreed on the Preamble of the Constitution. What was surprising was that the Preamble, which had elicited so many emotional reactions in the past, could have been settled with the minimum of fuss and bother.
Everyone was looking and saying that there must be something fishy between the two of us. How can Boy Geldenhuys, who is so very anti-communist, sit with a communist on a one-to-one basis and actually reach some kind of understanding?
BLADE Nzimande
recalling that the NP couldn’t believe agreement had been reached
In later weeks, there were objections to the exclusion of the opening line ‘In humble submission to God’ and reformulations were made, but for now all the parties were satisfied. ‘We wanted to keep it simple so that even kids could learn it by heart,’ said a happy Nzimande.
The Preamble starts with these words:
We the people of South Africa
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
and Believe that South Africa belongs to all who live in it, united in our diversity …
It closes with these lines:
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
Handwritten changes to the Preamble of the Constitution. Nelson Mandela Centre of Memory
5:47 AM
By the end of this dramatic session, many political agreements were in place. But some of the ‘hot clauses’ remained unresolved. The NP’s Ray Radue summed up the situation:
The night had been remarkable, with parties talking to each other under very intense conditions … but those [clauses] that remained were the most important and most difficult to solve.
Ray Radue
Member of the NP
All the same, the draft of the Constitution was considered polished enough to be tabled as a bill. The weary members of the Constitutional Assembly left the building and walked out into the cold Cape Town morning. The technical refinement team now had a mere few days in which to prepare the text of the Draft Constitution of the Republic of South Africa Bill, proof-read it and send it to be printed. While the team sweated to complete this gargantuan task, negotiators rested for the weekend, believing that the deadline would be met. The exhaustion of these final days was an important ingredient in reaching agreements.
You do almost sometimes need to get to a situation where people are really tired and where the uppermost thought in their minds almost is that they want to get to bed. Although people are perhaps not thinking as clearly as they should be, it also has the very important purpose of really focusing people’s minds about whether they want to go and argue on and on and on about technicalities, or whether you can’t just decide that the technicalities aren’t that important after all.
Willie Hofmeyr
then ANC member of the Constitutional Assembly
