How did the Constitution Come into Being?

During the late 1980s the National Party government had preliminary talks with Mr Nelson Mandela and subsequently with the ANC itself. On 2 February 1990 President FW de Klerk made the announcements in Parliament that opened the way to negotiations on the constitutional future of South Africa. He also announced the release of Mr Mandela and the unbanning of all political organizations.

Formal negotiations began at the multi-party Convention for a Democratic South Africa talks. These talks, more commonly known as the CODESA talks, commenced on 21 December 1991. However, on 17 June 1992 CODESA collapsed because parties could not agree on the percentage of votes that would be needed in the Legislature before the final constitution could be adopted.

The negotiating parties had different views on how and when the new constitution should be adopted. The ANC insisted that the final constitution, in order to make it more representative of all South Africans, could only be written and adopted by a properly elected body called the Constitutional Assembly. The National Party, the Inkatha Freedom Party and other smaller parties demanded that the first elections should be held only after agreement had been reached on the Constitution. This dilemma was resolved by the following ingenious means: the negotiating parties would reach agreement on an Interim Constitution (the Interim Constitution of the Republic of South Africa Act 103 of 1993, now repealed) in terms of which the first democratic election of 27 April 1994 would be held. Thereafter, the newly elected Parliament would also convene as a Constitutional Assembly whose task it would be to write and adopt the final constitution. However, the final constitution would have to comply with 34 constitutional principles that were agreed upon by the negotiating parties and that were included in the Interim Constitution. The Interim Constitution also outlined the transitional mechanisms that were to be put in place before the coming into effect of the final constitution and outlined the requirements for ensuring that the first national democratic elections of 27 April 1994 were free and fair.

The newly elected Parliament, sitting as a Constitutional Assembly, then drafted the Constitution of the Republic of South Africa, 1996. It was the outcome of long and arduous negotiations involving all South Africans. Everyone was given an opportunity to make their voice heard through the public participation channels created by the Constitutional Assembly. On 4 February 1997, the final constitution, called The Constitution of the Republic of South Africa, 1996, came into operation. However, before this could happen, one more important step was required. A process of certification of the Constitution of the Republic of South Africa, 1996.

On 10 May 1996, after reaching agreement on the text, the Constitutional Assembly presented its first draft of the final constitution to the Constitutional Court of South Africa for what was called “certification“. This certification process was significant in our new democracy for two reasons. Firstly, it was the first case that the newly created Constitutional Court ever heard as a court. Secondly, in a move that showed that the Constitutional Court was truly independently minded of the Executive and Legislature, the Constitutional Court refused to certify the first draft of the final constitution presented to it. (NB. There were many courageous judges in the old dispensation who were independently minded. The problem was that under previous constitutions, Parliament and not the courts were supreme.) The Constitutional Court refused to certify the draft of the final text because, in the Court’s opinion, the draft did not fully comply with some of the 34 constitutional principles that had been included in the Interim Constitution. The Constitutional Assembly accepted the decision of the Constitutional Court and went back to the drawing board, reworking the final text until all 34 constitutional principles had been fully accommodated. This redrafted text was again presented to the Constitutional Court for certification in October 1996. After a thorough review of every section, the Constitutional Court certified the text and the The Constitution of the Republic of South Africa, 1996 came into operation on 4 February 1997.