Birth of SA's highest law: The final countdown begins
A new book celebrating the 15th birthday of South Africa's Constitution details how agreement was hammered out in the final weeks before its adoption.
There were a mere three weeks to go before the deadline for the submission of the draft Constitution to the Constituent Assembly. As the hours ticked by, Parliament was turned into a makeshift home for the negotiators. Couches were used for beds. A small team of dedicated parliamentary staff provided tea, coffee and sandwiches every two hours. Fast-food outlets brought in meals around the clock. Party caucuses were convened regularly to obtain fresh mandates. Bilateral, multilateral and subcommittee meetings took place throughout the day and night.
During apartheid, Parliament had accommodated all-night sessions but, as the Democratic Party’s Colin Eglin remarked: “In the old days in this House, the all-night sittings were of a completely different nature. That was just filibustering by the opposition to keep the show going, so that the opposition could claim that ‘we’ve taught the government a lesson. We’ve made them sit all night.’ These late-night sittings for the Constitution were of a different order: to strike a deal and to conclude business.”
In these sessions the atmosphere was electric. Journalists and observers kept watch alongside politicians, advisers and administrative staff until the very end. South Africa held its breath.
A marathon all-night session of the constitutional committee was held on the night of Thursday April 18 1996, starting at 8pm and ending at 5.47am on a chilly Friday morning. This was later remembered as one of the most vital and dramatic days of the entire process, “one that I don’t think many of us will forget for a long time to come”, according to the National Party’s Ray Radue.
At the start of the meeting, the ANC’s Cyril Ramaphosa, 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.”
The constitutional committee convened on an almost hourly basis throughout the night, receiving reports from subcommittees, multilaterals and bilaterals. This is how it played out.
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, whereas the ANC insisted, as they had many times before, that this would perpetuate inequalities in education. The conversation between the representatives of the two parties revealed their utter frustration and despair:
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.”
Ramaphosa: “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?”
Marais: “I’m just the messenger.”
The ANC’s Valli Moosa said later: “The [NP’s] 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.”
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 so for the first time, I said: ‘I’m afraid it appears as if we are deadlocked.”’
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 (ANC) announced to the constitutional 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 (NP) told reporters that there were “serious shortcomings” in the property clause, whereas Dene Smuts vowed that the DP 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.”
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”.
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.
According to Ramaphosa: “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.”
Constand Viljoen of the FF remarked: “It was a brave move for the ANC — The big task is to arrive at implementation, but the ice is broken.”
The DP’s Ken Andrew commented: “It proves that South Africa is a country with a big heart.” In Roelf Meyer’s words: “Everyone claims victory.”
The ANC’s 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. Nzimande recalls that the NP could not believe agreement had been reached: “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?”
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.
By the end of this dramatic session, many political agreements were in place. But some of the “hot clauses” remained unresolved. 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.”
All the same, the draft of the Constitution was considered polished enough to be tabled in Parliament 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, proofread it and send it to be printed. Incredibly, it was able to incorporate all the agreements made on Friday 19 in time to place the Bill before the Constituent Assembly on April 22.
The Assembly approved the Bill two days later, but at the same time handed the constitutional committee a document with 298 pages of amendments. Many, but not all, were technical in nature. There would be problems ahead, as well as public protests (by Christians, who objected to a secular state) and strikes (by Cosatu, concerned about lockout clauses) but, after more hectic negotiations, the Constituent Assembly accepted South Africa’s new Constitution on May 8 and voted it into law.
One Law, One Nation: The Making of the South African Constitution, by Lauren Segal and Sharon Cort, is published by Jacana
Quotes from the book
“For most of us it was no different to the experience of an expectant parent waiting to see a newborn after a long and difficult labour.”—Hassen Ebrahim, two days before the May 8 1996deadline
“It was really a trying time, but ... it’s a privilege to be able to take part in making history.”—Willie Hofmeyr, ANC representative in the Constitutional Assembly
“Today is a day of joy. It is a day of celebration — This is the day when South Africa is truly born — Let us all give our country its true birth certificate.”—Nelson Mandela in Parliament on May 8, when the finalised Constitution was presented for the vote
“There are very creative things [in the Constitution]. The extent to which we are protecting gay rights, our approach to socioeconomic rights and the — application of the Bill of Rights —”—ANC negotiator Blade Nzimande