Writing and Certifying the Constitution (1994-1996)
The new democratic Parliament, which doubled as the Constitutional Assembly, was given two years to write the final Constitution. From across the political spectrum, the 460 members engaged with the people of South Africa, working day and night to produce draft after draft. In the end, it was a race to the finish line.
There was great elation on 8 May 1996 when Parliament adopted the Constitution by an 87% majority. Once the Constitutional Court had certified that the text complied with Principles agreed to in advance, it was signed into law on 10 December 1996.
This timeline gives an overview of the story of the constitution-writing process.
9 May 1994
Day one of the first democratic Parliament
“The government I have the honour to lead … is inspired by the single vision of creating a people-centred society … to the pursuit of the goals of freedom from want, freedom from hunger, freedom from deprivation, freedom from ignorance, freedom from suppression and freedom from fear.”
-President Nelson Mandela in his first State of the Nation address to Parliament, 9 May 1994
The new Parliament doubles as a Constitutional Assembly (CA). While its 490 members, representing seven political parties, must govern the country, they also have just two years to draft a new Constitution. D-day is 10 May 1996.
10 May 1994
Nelson Mandela’s inauguration
“We place our vision of a new constitutional order for South Africa on the table not as conquerors, prescribing to the conquered. We speak as fellow citizens to heal the wounds of the past with the intent of constructing a new order based on justice for all.”
-President Nelson Mandela, 10 May 1994
Nelson Mandela is inaugurated as the President of a newly democratic South Africa. Representatives of 160 countries attend the inauguration.
11 May 1994
President Mandela announces his cabinet
“There was pride in serving in the first democratic government in South Africa, and then the additional pride of serving under the iconic leadership of Nelson Mandela … [He] represented the hopes of not just our country, but of oppressed, marginalised and the poor in the world.”
-Jay Naidoo, then Minister of RDP housing
President Nelson Mandela announces his cabinet. It includes members of the African National Congress (ANC), National Party (NP) and Inkatha Freedom Party (IFP).
24 May 1994
Time to make the changes
“We must construct that people-centred society of freedom in such a manner that it guarantees the political and the human rights of all our citizens.”
-President Mandela, extract from State of the Nation Address, 24 May 1994
President Mandela gives his State of the Nation address in Parliament. Mandela ends his address with the words, “Let us all get down to work”.
24 May 1994
The Constitutional Assembly (CA) meets for the first time
"There is tough political bargaining ahead but I hope intellectual balance, good humour and farsightedness will be shown.”
-Cyril Ramaphosa, Chair of the Constitutional Assembly, 24 May 1994
The CA meets for the first time and elects Cyril Ramaphosa as Chair and Leon Wessels as Deputy Chair.
26 May 1994
Mandela meets with the PAC
“We are committed to making the Government of National Unity something that has got substantive content, not just a hollow content where we endorse the views of the ANC.“
-President Mandela’s interview with Patti Waldmeier, 1994
President Nelson Mandela says that in order to promote national unity he is willing to bring into government those who remain outside. He urges Pan African Congress of Azania (PAC) leader, Mr. Clarence Makwetu, to present him with a list of PAC members and in which government structures they wish to be involved.
June 1994
The new Court
“It is a marvellous opportunity to be in at the beginning of the formulation of our new constitutional jurisprudence … remembering always that our task will be to interpret a South African Constitution in the light of its own history and needs of the country.”
-Arthur Chaskalson, then President of the Constitutional Court
President Mandela appoints human rights lawyer, Arthur Chaskalson, as President of the Constitutional Court along with four other judges. The independent Judicial Services Commission (JSC) appoints the other six judges.
August 1994
The engine room of the process
“We were overwhelmed, and to some extent frightened by the nature of the assignment … We had to conceptualise the process and set up an administration simultaneously. I think it was a sheer stroke of good fortune - our stars were in the right constellation - that we were successful, that we were able to make reality out of dreams and political rhetoric.”
-Hassen Ebrahim, then Executive Director of the CA
A Constitutional Committee of 44 representatives from the different parties is established as the ‘engine room’ of the process to draft the final Constitution more efficiently. An administration to support it is also established.
September 1994
The matters that really matter
“It will be their task to isolate these views, to find common ground where that is possible and to process key issues.”
-Pravin Gordhan, then ANC member of the CA
The CA appoints six theme committees to ensure the inclusive nature of the writing process and report on the multiple issues that need to be covered in the new Constitution.
December 1994
‘Tell us what you want’
“Never in the history of South Africa have so many submissions been received in a period of less than three months. When we conceived the Public Participation Programme (PPP), many people came to us and said that only academics and lawyers would be interested. I am happy to say that we have submissions written by people from all walks of life.”
-Enoch Sithole, then Head of Media for the CA
Through a widespread Public Participation Programme (PPP) the public are invited to tell the Constitutional Assembly what they want to see in the final Constitution.
11 February 1995
Constitutional Public Meetings Programme launched
“Going to the people and explaining the process was a wonderful experience. Sitting out there with politicians from all the parties and listening to them explaining the various points of view, that was wonderful.”
-Leon Wessels, then Deputy Chair of the CA
The Constitutional Public Meetings Programme is launched in Paarl. Throughout February and into March a further nine meetings are held around the country.
14 February 1995
We have a Constitutional Court
“The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused but, on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy.”
-President Nelson Mandela, 14 February 1995
President Mandela inaugurates South Africa’s first Constitutional Court. It is the highest court in the country and has a duty to uphold and protect the Constitution.
20 February 1995
Civil society submissions
“Never in the history of South Africa have so many submissions been received in a period of less than three months … written by people from all walks of life”
-Enoch Sithole, then Constitutional Assembly Spokesperson.
The CA announces that thousands of submissions have been received, indexed and forwarded to the CA Database Project at UCT where they will be scanned onto a database.
March 1995
The IFP walks out
“We hope that good sense finally prevails with the leadership of the IFP and that they realise the national importance of their participation in the structure of government and also the Constitutional Assembly.”
-Cyril Ramaphosa, then Chair of the CA
The IFP walks out of Parliament over the issue of greater autonomy for the provinces and accuses the ANC of running the country through majoritarianism.
26 May 1995
Christian activists march on Parliament
“The African Christian Democratic Party (ACDP) believes in a biblical approach to the granting of fundamental human rights. We believe that God is the giver of all good gifts, including human rights. We question the legitimacy of human rights that have not been God-ordained.”
-Theme Committee 4, ACDP preliminary submission.
Ten thousand Christian activists march on parliament demanding that the supremacy of God be acknowledged in the Constitution.
19 July 1995
Promotion of National Unity and Reconciliation Act
The Truth and Reconciliation Commission (TRC) is established based on the final clause of the Interim Constitution of 1993 and passed in Parliament as the Promotion of National Unity and Reconciliation Act, No 34 of 1995. Like the work of the Constitutional Assembly, it was also committed to listening to South Africans.
Click here to view the South African History Archive collection on the TRC
31 August 1995
Telkom Constitutional Talk-Line
“Constitutional Talk-Line is yet another effort to give real meaning to the CA's commitment to a transparent and inclusive process of writing the new Constitution … We wish to thank Telkom for having agreed to avail R370 000 for this project over the next nine months.”
-Media Statement issued by the CA, 31 August 1995
The special Telkom Constitutional Talk-Line receives over
10 000 calls from the public. The service is available in a choice of five languages – English, Afrikaans, IsiXhosa, SeTswana and Sesotho. Callers could receive information or leave messages on the line and their call would be returned.
August 1995
Divisions and deadlocks
“Only bilateral meetings between the parties can now enhance the process.”
-Cyril Ramaphosa, then Chair of the CA
Parties refuse to budge on certain issues. Time is tight. A new sub-committee is established in a bid to break the deadlocks.
1 October 1995
Constitutional education radio talk-show
"The ultimate goal of [these media projects] is to ensure that the South African public not only takes part in the writing of the new Constitution, but knows what a Constitution is all about and are able to use it in their daily lives … When this process ends, we want to ensure that the new Constitution is used in the same way the Bible is used, that every home, school or place of work has a copy of the new Constitution and that as many citizens as possible can understand and interpret it."
-Enoch Sithole, then Head of Media for the CA, 1995
In collaboration with SABC Education, a weekly constitutional education radio talk-show is developed and launched on 1 October 1995.
October 1995
The first milestone is reached
A first working draft of the Constitution is at last presented to the CA. Further negotiations are still needed on 160 issues. It is approved early in November and published on November 22, 1995. The public is given three months to comment.
22 November 1995
The first working draft goes public
“Securing your rights, securing your future. One law for one nation.”
-Tag lines used in some of the awareness campaigns
An awareness campaign which touches millions of people reaches its climax. Over 5 million copies of the working draft are distributed in all 11 official languages countrywide. Public response is overwhelming and the negotiations pick up pace.
November 1995
Efforts to include the IFP
“l will be seeking to meet Chief Buthelezi to hand over this draft Constitution to him and once again invite the IFP to come back to the constitution-making process ... It is in the interests of South Africa that the IFP should come back into the constitution-making body. When they read this Constitution I am sure they will see that this is the type of Constitution that is good for the country.”
-Cyril Ramaphosa, Chair of the CA, November 1995
Efforts are made to draw the IFP back into the process and culminate in Cyril Ramaphosa's public attempt to re-engage Dr Mangosuthu Buthelezi - to no avail.
February 1996
The calm before the storm
Early in February, it emerges that about 65 contentious issues are needing the politicians’ attention. Cyril Ramaphosa wants to finalise the negotiations at the end of March to allow for technical refinements and the plain language drafting during April. Judging by the debates, he seems to be asking for too much.
14 March 1996
Unresolved issues
An evaluation of the fourth edition of the working draft reveals that many issues remain unresolved. In order to tackle these, a ‘quiet get-away’ is planned for all the parties involved.
1-3 April 1996
Bosberaad at Arniston
“From the beginning, the ANC and the NP were of the impression that the real stumbling block would be the division of power between the Central Government and the provinces. Often, this issue was referred to as ‘the heart of the Constitution’. We were afraid that we would deadlock on that.”
-Roelf Meyer, then NP Chief negotiator for the CA
Members of the political parties, advisers and constitutional experts retreat to the seaside village of Arniston in the Western Cape. Here they can thrash out issues without distraction.
5-15 April 1996
Technical Team drafts fifth version of the working draft
In public, the constitutional story goes quiet for the Easter break. In the offices of the technical refinement team, however, it is anything but quiet. For the next 33 days, the atmosphere is tense as the new draft is being written. According to the schedule, the Constitutional Committee has only four days to produce a bill that would have to go before the Constitutional Assembly. This is a race to the finish line.
Mid-April 1996
Closed door bilateral
Political parties resort to closed door bilateral meetings. A private sector delegation meets with the ANC, NP and Democratic Party (DP) to express concern about the property clause. The National Land Committee marches to parliament to protest the property clauses ‘protection of the privileged’, and the unions march to protest employers' right to lock out strikers.
17 April 1996
Lobbying outside parliament
A great deal of lobbying by interest groups has begun. The private sector and the unions face their own showdown over the property and lock-out clauses. Ramaphosa accepts petitions from workers who oppose the lock-out clause.
17 April 1996, midnight
14 outstanding issues to be debated and the “package approach”
Both Roelf and Cyril keep smiling and tell journalists that consensus will be reached. But in retrospect, Ramaphosa describes the final phase of negotiations as being “marked by anxiety and great fatigue”. For the first time, he admits that the process resembles the tension-filled days before the 1994 elections ... “It was more a fear that a final Constitution would not be achieved.”
18 April 1996
The last mile
“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. All the same, the draft of the Constitution was considered polished enough to be tabled as a bill.”
-Ray Radue, then NP member of the CA
The Constitutional Committee holds an all-night session. By morning, many political agreements are in place but some of the ‘hot issues’ remain unresolved.
19 April
Technical Refinement Team has 48 hours to prepare the Draft Constitution
"I suppose you could say we were getting used to it by then. For the last two or three weeks we were getting by on four or five hours' sleep a night. We were living on adrenalin ... I wasn't taking drugs … I was eating a lot of takeaway chicken though."
-Philip Knight, then Head of the Technical Refinement Team
With the Constitutional Committee meeting now finally over, the Technical Refinement Team face 48 virtually sleepless hours in the preparation of the Draft Constitution of the Republic of South Africa Bill. On Sunday 21 April 1996, the bill is put on to the Constitutional Assembly's giant photostat machines for printing. Knight comes to work at 9 a.m. and doesn’t go home until 8 a.m. the following morning. He is back in the afternoon to work on the errata sheet.
22 April 1996
Tabling the draft Constitution
“The Constitution meant the immense sacrifices of so many people for freedom were not in vain.”
-Thabo Mbeki, Deputy President, 1996
The Constitution of the Republic of South Africa Bill is presented to the Constitutional Assembly. It is approved two days later but 298 clauses need to be reworked.
25 April 1996
298 pages of amendments
The first reading of the bill is approved by the CA on Wednesday night, April 24. But the Constitutional Committee now has to confront 298 pages of amendments - a document as thick as the Constitution itself.
26 April 1996
Congress of South African Trade Unions (COSATU) sets a date
"The strike will be called off if our demands are met."
-Mbhazima Sam Shilowa, then Secretary-General of COSATU
Pressure mounts when COSATU announces that it will start a mass action campaign to protest against the labour provisions. Opposition parties and the business community are outraged, believing that the union movement has had ample time to make submissions along with everyone else. It is not only the threat of mass action. Several issues result in a deadlock 12 days before the deadline.
28 April 1996
A private meeting at President Mandela’s Pretoria residence
“The Constitution is a recipe for a totalitarian autocracy and the greatest danger to liberty in the country.”
-Chief Mangosutho Buthelezi, Leader of the IFP
In an attempt to break the deadlocks, Mandela meets de Klerk. ANC and NP and negotiators meet with COSATU and business. Smaller parties feel excluded.
29 April 1996
The danger zone
“We are now in a danger zone. If we take a wrong turn in the next 24 hours, we could do something that we could regret for many months, possibly years.”
-Cyril Ramaphosa, then Chair of the CA
There are changes - a tribute is added to the Preamble of the Constitution and alterations are made to aspects of the provincial powers. The language issue still requires settlement. The final deadline is fast approaching and certain key issues are dangerously close to deadlock. The negotiations are into what Ramaphosa is now calling ‘the danger zone.’
30 April 1996
COSATU general strike
“Despite all the mitigating factors against the unions, the April 30 strike was a success, if taken on the unions’ own terms. According to the unions, there was a 75% participation rate in the stay-away and over 200 000 workers participated in rallies in cities and towns throughout the country.”
-Mathew Ginsburg reports in Solidarity
On Tuesday 30 April, COSATU stages a general strike. At lunchtime, unionists rally outside Parliament. The Constitutional Committee delays its meeting.
1-2 May 1996
The centre may not hold
"We're looking at disaster in the sense that if we don't adopt this Constitution, we will be led to hold a referendum ... We don't need this at this stage in our transition. Compromises can be reached if the parties have the political will. If they don't all sorts of things start coming undone - the centre will not hold. I don’t believe we sat here for two years wasting our time, to go for a referendum.”
-Cyril Ramaphosa, then Chair of the CA
For 15 hours, the Constitutional Committee debates outstanding issues without success. Desperate, they consider holding a referendum to resolve the issues. The next day, the haggling continues around the clock until 5 a.m. on Thursday when Roelf Meyer proposes a 24-hour adjournment “so that every effort can be put into resolving the outstanding matters".
2 May 1996
Technical Team produces an amended bill
“Nothing has been finalised.”
-Cyril Ramaphosa, then Chair of the CA
At 5 a.m. on Thursday, the Technical Refinement Team is told to produce an amended bill. They start on Thursday afternoon and work through the night to produce a proof an hour before the Constitutional Committee is due to meet on Friday morning, 3 May. By eleven o'clock on Friday morning, the negotiators have a clean draft but little else.Deputy Chair Leon Wessels opens the committee meeting and says: "All I have to report is that I have nothing to report."
3 May 1996
The Malherbe document
During the night of Friday 3 May, and in the early hours of Saturday 4 May, four NP officials eat takeaways and draw up a document – the Malherbe paper – with a view to preventing FW de Klerk from asking his caucus to vote against the draft Constitution.
4 May 1996
Technical refinement sessions and outstanding issues
“The principle in negotiations ... is that in order to negotiate in good faith, you have to respect the other side. But to be quite honest, on the education issue, I couldn’t help but feel that I despised the Nats because they were trying in all sorts of ways to really entrench apartheid. In that way, I preferred the Freedom Front, because they were very straight and honest with us.”
-Blade Nzimande, then ANC negotiator of the CA
On Saturday morning the technical refinement team meets with representatives from all the political parties on a rotating basis, and for the next 12 hours go through the bill chapter by chapter with each party. At midnight on Sunday, the document goes for printing.
6-7 May 1996
Fear of a referendum
The debate in the CA is acrimonious as fears mount that a referendum may be inevitable. Final provisions are resolved in an all-night meeting.
8 May 1996
D-Day becomes adoption day
“It was remarkable that 87 per cent of the members of the Constitutional Assembly voted for the Constitution. It gives it a special status. It says that it’s not the document of some or other political party, that it’s really a consensus document belonging to the South African nation. The ANC wanted that. That’s why we did take the other parties very seriously. It wouldn’t have been good enough if we simply had two-thirds voting in favour of the Constitution.”
-Valli Moosa, then ANC Member of the CA
Cyril Ramaphosa presents the Constitution to the CA. At 11 a.m. - exactly ten hours after the negotiators had tabled the last amendments - the CA adopts the Constitution. Two-thirds of the Assembly vote in favour with two nays and ten abstentions.
9 May 1996
The NP walk out
The National Party walks out of the Government of National Unity (GNU), preferring to develop its future as an opposition party. A new concern haunts the negotiators: will the NP reopen some of the "hot clauses"?
10 May 1996
The Constitution goes to Constitutional Court and Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96)
“It was a totally unique undertaking. I don't know if any other Court in the world had ever undertaken to determine if a constitution was constitutional.”
-Arthur Chaskalson, President of the Constitutional Court
The Constitutional Court is given the enormous task and responsibility of certifying the Constitution. The judges hold the future of the country in their hands.
May to July 1996
More public submissions
Mirroring the Constitutional Assembly’s drive for transparency and public participation, the Court extends an open invitation to all South Africans to submit objections to the Constitution. In all, the court receives 155 objections to the text. A special room is set aside and extra staff hired to process the 2 500 pages of submissions that piled up as well as the extracts from judgements, textbooks and other publications that were annexed.
1 July 1996
The case commences
The President of the Court, intent on dealing with the matter as thoroughly and swiftly as possible, fixed 1 July 1996 as the date for commencement of the case. The case is set to last for ten days, longer than any other matter that had come before the Court.
11 July 1996
The last day of the hearing
After an exhausting 11 days of argument, the hearing comes to an end. The justices believe that it has gone extremely well. It took two months to write the judgement.
6 September 1996
The verdict
“What was amazing is that we got absolute consensus amongst the 11 justices … This was not a small achievement given the multiplicity of cases and the massive implications of our decisions for the future.”
-Arthur Chaskalson, then President of the Constitutional Court
For the rest, the judges use their special powers to decide whether every particular detail contained in the new text complies or fails to comply with the stated constitutional principles ‘irrespective of the attitude of any interested party’. They not only had to record their conclusions but also explain the reasons for each conclusion.
September to October 1996
The CA makes final changes
The CA has three weeks to complete revisions to the text. On 7 October parties reach an agreement on all eight clauses that had been rejected by the Court. The Constitutional Assembly approves the changes with only one vote (by the ACDP) against it. An amended Constitution is ready for submission to the Court on 11 October.
11 October 1996
Achieving the Impossible
At last the CA approves the amended Constitution by 369 votes to one, with eight abstentions. Cyril Ramaphosa, who has led the process with calm and determination, gets a standing ovation.
18 November - 4 December 1996
The Constitutional Court’s second ruling
The Constitutional Court's second hearing begins on 18 November. On 4 December, in the Certification of the Amended Text of the Constitution of The Republic of South Africa, 1996, the Constitutional Court grants the Constitution its unanimous approval.
10 December 1996
One law for one nation
“Whilst watching Madiba sign the Constitution, there were a lot of emotions that just went through my head. I was humbled that I was watching history unfolding. The 77 people that died here [at Sharpeville], and the hundreds of thousands of other people who died throughout the country, all died to make sure that we have this document. This is the document that should wipe away the tears and the blood that was shed here [and] correct that horrible history.”
-Cyril Ramaphosa on the day of the signing of the Constitution in Sharpeville
In a stadium in Sharpeville, President Mandela signs the Constitution on International Human Rights Day. An elated Ramaphosa holds it up for the excited crowd to see.
4 February 1997
The Constitution comes into effect
The Constitution comes into effect on 4 February 1997, replacing and repealing the Interim Constitution of 1993.
6 February 1997
Inauguration of the National Assembly Chamber of Parliament
The National Council of Provinces (NCOP) is inaugurated on 6 February 1997 as a second House or chamber of the Parliament of South Africa. It is hoped that the NCOP, established by the final Constitution, would provide a stronger link between Parliament and the provinces than its predecessor, the Senate, which had existed under the Interim Constitution.
March 1997
You and the Constitution
“Democracies are generally noisy places in which there is much noise and contestation. It is oppressive and authoritarian societies that are silent. Our democracy is certainly wonderfully noisy and contested. We should neither be silenced by the noise nor deterred from pursuing the Constitution’s vision by the contestation. Our Constitution’s message is simple. We must acknowledge the injustices of the past that still mark our present and work to eradicate those injustices so that we can really free the potential of each South African.”
-Justice Kate O’Regan
The publication, You and the Constitution tells South Africans "to make sure that there will always be democracy in South Africa".
References
