THE POLITICS OF CONSTITUTION MAKING

UNIVERSITY OF ST LOUIS,

2 APRIL 2004

The South African Constitution is, in a very real sense, the foundation of the new South Africa:

It guarantees our most basic rights, including our right to life, freedom, property and to participate freely in our democratic system.
It articulates the values for which the new South Africa stands and the goals for which we strive;
It recognises the equality of all our diverse communities. It entrenches our right to practice our religion and to speak and educate our children in the language and cultural traditions of our choice.

As Albie Sachs, one of our Constitutional Court judges has put it, it is the autobiography of the nation.

The Constitution is particularly important for a country like South Africa with a complex population and a history of division and conflict. It was freely negotiated and accepted by parties representing substantial majorities from all our communities and provides a blueprint for peace, justice and harmony that is acceptable to the overwhelming majority of South Africans.

The Constitution is also especially important for cultural, political and religious minorities. The majority can usually secure its interests through its control of the levers of government. Minorities on the other hand are often dependent on the Constitution and the law for the protection of their most important interests

How did South Africans from very widely differing cultures, traditions and ideologies manage to reach agreement on this remarkable document?

Indeed, it would be difficult to imagine parties that were further apart at the beginning of our constitutional negotiations than the National Party, the IFP and the ANC – which between them represented almost 94% of the electorate.

The ANC/SACP Alliance came from a radical socialist tradition. Before 1990 it was committed to nationalisation and the immediate introduction of an egalitarian society. It advocated a strong central government and state intervention in the economy to achieve its social purposes. It insisted that the new Constitution should be drafted by an elected constituent assembly. It viewed the National Party in terms of its experience of apartheid and of security force repression during the liberation struggle.

My Party, the National Party enjoyed majority support in the white, coloured and Indian minorities. It strongly favoured a free enterprise economy, a federal state, and some form of power-sharing. It was particularly concerned with the protection of minorities and wanted a constitution that would include some form of power-sharing between communities. It insisted that the new Constitution should be drafted before the first election – because it feared that the majority ANC would otherwise be able to impose its constitutional will on the minorities. Its views of the ANC had been formed during decades of struggle against the organisation and by its alliance with the South African Communist Party.

The IFP – the Inkatha Freedom Party – enjoyed the support of traditional Zulus – South Africa’s largest cultural group. The IFP had chosen to combat apartheid from within the system. For this reason it was distrusted by the ANC with whom it had for some time been waging a low intensity war in the province of KwaZulu-Natal. It was strongly federalist; it supported free market principles and had its main support base among the Zulus of Natal. It also believed very strongly that the new constitution should be drawn up by all the significant parties in the country before the first election.

What enabled these parties and the other twenty-three that joined them in the multi-party negotiations to bridge the enormous chasms that divided them? The key compromises that led to our agreement are now a matter of record:

Perhaps the greatest obstacle was the ANC’s insistence that the new constitution should be drawn up by a Constituent Assembly that would be elected on a one-man, one-vote basis. The NP and the IFP strongly opposed this approach because it would deprive them – as minority parties – of their ability to ensure that key rights and provisions would be included in the new constitution. We overcame this obstacle by accepting an ingenious compromise: the negotiating parties would first reach agreement on a Transitional Constitution in terms of which a new parliament would be elected. The new parliament, sitting as a Constituent Assembly, would then write our final Constitution. The final Constitution would, in turn, have to be adopted by a two thirds majority and would have to comply with thirty-four immutable constitutional principles that would already be included in the Transitional Constitution.
We accepted that all our cultural groups – many of them nations in their own right – would be enabled to maintain their cultural identities within a new, broader South African nation. They would have the right – where practicable – to mother tongue education; they would be able to practise their cultures and to speak their languages.
After much debate, all parties accepted reasonable provisions for the protection of property rights and, in particular, the principle that no-one could be deprived of property without fair and market-related compensation
We agreed that for the first five years after the election there would be a Government of National Unity, which would include all parties that received more than five percent of the vote.
We agreed that South Africa would henceforth include nine provinces with substantial powers of their own.
We agreed that all those, from all sides, who might have committed politically motivated offences during the period of our national conflict before 6 December 1993 would have a right to amnesty.

The result of this process was the adoption in December 1993 of our new Transitional Constitution. It made provision for a fully democratic system of government based on the rule of law, with guarantees for the full range of human and civil rights.

Looking back on our experience we can identify the following key factors that contributed to the success of our negotiations:

There must be a genuine commitment to a negotiated solution by all the main parties. The balance of forces must be such that no party should think that it can successfully impose its will on the others. Perceptions of relative power – and projections of future shifts in the balance of power – are crucial. It is such perceptions that will often determine the form that compromises will take and the demands and concessions that parties will make at the negotiating table. In short, if a party has no power and few prospects it is unlikely that other parties will feel much need to make compromises to accommodate its interests.
It is essential for negotiators to win one another’s trust and confidence. Without trust there can be no genuine agreement.
Timing is crucial. Had we started our negotiation

initiative earlier – say, in the middle ‘seventies – it

is doubtful that the National Party government would have been able to take its followers with it. If we had launched our initiative too late, we might have entered the negotiation process when the balance of power had begun to shift against us – as Ian Smith did in Zimbabwe.

History sometimes opens a window of opportunity, when all the forces involved are ripe for negotiation. It is the task of statesmen to recognise such windows and lead their followers through, before history once again slams the window shut.

Negotiations that do not involve all the parties are like rugby matches in which one of the teams fails to appear. One of the major problems that we encountered were the boycotts of the talks that were initiated first by the ANC and then by the IFP. It was essential for us to persuade all the major parties to rejoin the process before the elections. This we ultimately managed to do with only eight days to spare! It is equally important for parties to be able to take their constituencies with them. Strong and determined leadership is essential. An important, but time -consuming – factor in our negotiations was the lengthy process for participants to consult their constituencies before important decisions.
Personalities also play an important role. The main role players from the negotiating parties must be able to develop personal relationships based on mutual trust and confidence. They must also develop a strong sense of patience and the fortitude to deal with the frequent frustrations and obstacles.
In our negotiations at Kempton Park we found it very useful to develop special mechanisms to deal with deadlocks and problems. One such mechanism was a two-man committee of senior officials, whose task it was to suggest compromises and solutions when deadlocks and problems arose.
Ultimately, negotiators must be prepared to take risks to assure a successful outcome to their efforts. Few agreements will ever be absolutely water-tight and at some juncture a leap of faith will usually be unavoidable.
Win/win outcomes. Ultimately, the success of negotiations will depend on the ability of the negotiators to fashion workable compromises by addressing the reasonable interests and concerns of all parties. One-sided solutions seldom last and simply make the eventual resumption of genuine negotiations more difficult.

These are among the factors and processes that enabled South Africa to reach agreement on our peaceful transition to multi-racial democracy. The fruits of our successful compromise have been well worth the effort, sacrifices and frustrations involved in negotiations. The price of continued conflict would have been bitter and unacceptable.

The best contribution that we in South Africa can make will be to work day and night to ensure that our Constitution becomes a living document for all South Africans – that all our people are aware of their rights and are in a position to claim them in practice.