There are fears that last-minute bargaining is watering down civil liberties in the new Bill of Rights, reports Marion Edmunds
Kempton Park-style horse trading between the African National Congress and the National Party over the last week is sealing disputes over the Bill of Rights, prompting criticism the two parties together have retreated from the interim Constitution and watered down fundamental rights for the new South Africa.
In a flurry of bilaterals this week, the ANC and the NP moved towards resolution on problem clauses, aiming for an agreement by deadline Friday — an agreement which effectively excludes the smaller parties such as the Democratic Party, the Pan Africanist Congress and the Freedom Front.
While ANC negotiator Willie Hofmeyr praised progress between parties, saying that “the people in the ANC and the NP buckled down to the deadline, were prepared to bite the bullet and engage in give and take”, the DP is disappointed that the NP did not support it against the ANC on a number of points of principle, particularly on the limitations clause and property rights.
DP MP Dene Smuts said this week: “South Africa deserves better than to have the last few big outstanding issues settled between the ANC and the NP. It’s not a contest, the ANC will get its way. Thank heavens the vast bulk of the Bill of Rights is already concluded.”
Smuts says she is angry that the Nats “dropped” her “from one moment to the other” on the limitations clause. The limitations clause is a burning point of principle, not only to Smuts and the DP, but also to NGOs and a posse of Johannesburg lawyers, who have been watching the process anxiously from a distance, either from the public gallery or through the media.
While the ANC, and now the NP, want a limitation clause which permits government to limit rights when it is considered “justifiable” and “reasonable”, the DP and NGOs such as the Human Rights Committee want the limitation to be stricter — to prove limitation as “neccessary”. This test would make it more difficult for the government to invade the rights of citizens.
Susie Cowen of the Human Rights Committee said in response to signs that ” the necessity test” was to be left out of the clause: “It’s hard to understand why government should be permitted to limit rights unnecessarily. A weak limitation clause undermines the essence of the rights themselves.”
Smuts maintains that the NP bent to the ANC, saying that the moment NP negotiators had wavered on the limitations clause in multi- party meetings this week, the ANC had suggested a bilateral which had excluded the DP.
She had believed that concerted DP and NP action could have “saved the limitations clause”. It was within our grasp,” she said. “The root to the dilution of the Bill of Rights, this current formulation gives the nod to the courts that they can relax the limitation on invasion of rights by the government.” Smuts moved an amendment on Wednesday which had no success.
The DP is similarly disappointed that the NP has not fought the ANC more strongly on the property clause, which Hofmeyr says is nearing a conclusion with which the ANC could live. This is despite last-minute representations by the business community to have it changed. Smuts indicated that the DP and the business community were frightened that the imperative to land reform in that clause would override the guarantees of property, when tested in court. The ANC through Hofmeyr maintains the DP is reneging on an agreement struck by technical advisers at the Arniston conference. The DP insists this agreement was never sanctioned by politicians, and that it formally reserved its position at the time.
Says Angela Andrews of the Legal Resources Centre: “NGOs are still considering whether the current formulation effectively downgrades the right from its status as a fundamental right so that it possibly falls foul of the constitutional principles. If this is the case, it still can be challenged in the constitutional court.”
What is frightening, at this stage, is that many of the NGO commentators and academics that sit on the sidelines of the human rights debate openly confess that they do not know what opinions motivate certain decisions by political parties in their choice of crucial formulations. There is a growing despair at what are seen to be trade-offs on issues of principle.
“The content of human rights must be determined on their own merits rather than as the results of political trade-offs,” said Cowen. “Political agreements can be easily destabilised by current pressures and that does not lead to a durable constitution.”
And, while NGOs are at this stage being sidelined by grootpolitiek, Cosatu is playing a pivotal role in the determination of the labour relations clause. Neil Coleman said that Cosatu had met the NP twice over the week to discuss the lock-out clause on which it was not prepared to move. He said that Cosatu’s national executive would meet on Friday to discuss the Constitution as a whole, deciding either to sanction it or protest against it through national mass action. The NP has already agreed to concede the closed shop agreement to the ANC.
While Meyer said this week that Cosatu had not threatened him with national mass action if it did not give up on the lock-out clause, Coleman said that the “NP must be aware of what an emotive issue the lock-out clause is among workers, of which there are many in the Western Cape. The National Party must be aware of the implications of seeming to support employers against workers in the run-up to the local government elections.”