give-and-take
The Constitution: The Constitutional Assembly has produced its last working draft of the final Constitution before the May 8 deadline. It will be finalised at a bosberaad this weekend, reports Marion Edmunds
AFRICAN National Congress MP Willie Hofmeyr’s eyes are large pools of limpid exhaustion as he gazes onto the first page of the Bill of Rights. Wearily he picks up a pen and starts: “We have made progress … here, we’ve taken out that word there, and we have brought this clause round here.” Flicking through the pages, he ticks the Freedom of Expression clause, makes a grammatical change in the Freedom of Religion clause and ticks one word in the Freedom of Occupation clause.
These changes — which on paper seem so small and technical — represent the progress made after weeks of hard bargaining between the party negotiators on the Bill of Rights, as they edge forward to agreement.
When Hofmeyr turns to the Property clause, he just passes his hands over the clause and murmurs under his breath, “too sensitive, too sensitive to even talk about”.
The Property clause This has become the site of intense struggle between the political parties, the ANC essentially fearing that a property clause would stand in the way of state-driven land reform and the National Party, Freedom Front and the Democratic Party concerned that a property clause was needed as a neccessary protection for property-owners against the state.
The parties are, in devising a formulation, trying to balance the two positions as well as write into the Constitution the sort of compensation neccessary should the state expropriate land. The fact that there is a property clause in the Bill of Rights indicates a major concession from the ANC, which originally opposed it being there at all, with backing in that stand from Cosatu. Whatever the final formulation, it is expected that the ANC negotiators will have to do a hard-sell to convince their constituents of the outcome. This is not a clause which will be resolved easily.
The Right to Life This is a major stumbling block within the Bill of Rights because it has political implications for the death penalty and abortion. The key disagreement is between the ANC and the NP. The ANC is opting for a clause that simply says: “Everyone has the right to life.” The Nats want a formulation that makes the death sentence possible. This issue has been deadlocked, and there are hopes that parties will find agreement in Arniston.
The Democratic Party’s chief rights negotiator Dene Smuts says she believes the only way to move from this impasse is to opt for “everyone has the right to life”, because the deadlock of principle between the ANC and the NP is, in her view, implacable.
Interestingly enough, since November last year, the Constitutional Assembly has received 186 376 petitions in support of the constitutionalisation of the death penalty, and 9 604 petitions calling for the right to life to outlaw abortion.
Freedom and Security of the Person At this late stage, this right remains contentious because it could have an impact on future abortion legislation, although the issues affected by the right go much further than that, and include protection from torture and detention without trial. While none of the parties wants the right to abortion on demand constitutionalised, the NP is concerned that the right, as it is currently drafted, could tilt judgments on future legislation towards the liberalisation of abortion. Insiders say internal disputes within the NP will have to be resolved before this clause is finalised.
Labour Relations In an uncanny repeat of the multi-party negotiations at the World Trade Centre, disagreements over the right to strike and the right to lock-out are blocking consensus on the Labour Relations clause.
The ANC is arguing that there is no international precedent to the right to lock- out and therefore it ought not to be in the Bill. Further, the ANC argues that the property right gives employers control over who is on their property so there is no further need for a right to lock-out to be entrenched in the Bill of Rights.
The DP is arguing that writing the right to strike into the constitution and not the right to lock-out will give the right to strike greater influence in the common law.
“If the one — the right to strike — is constitutionalised and not the other, then the equivalence see-saws out of balance,” said Smuts.
Limitation of Rights This section of the Bill of Rights remains highly sensitive because it limits the extent to which the executive or Parliament can override the Bill of Rights to implement legislation considered important for the running of the country.
Recently, a formulation has been found that appears at this stage to satisfy all parties, following lengthy tussles between the ANC and the DP about the extent to which rights could be limited, the DP wanting a stricter test than the ANC.
The ANC has justified its position on the Limitation clause, saying, by way of an example, that the Bill of Rights ought not to stand in the way of legislation aimed at beefing up policing powers to reduce crime. In response to criticism that the Limitation clause waters down the Bill of Rights, Hofmeyr responds: “We don’t think that in South Africa rights should be as broadly defined as in a stable democracy such as the United States … but the limitations clause puts us solidly where the vast majority of democratic rights- based countries are.”
The DP’s Smuts says the solution lies in moving to a formulation which ensures that rights are invaded as little as is reasonably possible. “If there is a weak limitation clause, all your rights can be bled to a point where they constitute haemorrhage and cannot be applied,” she said.
Smuts believes that the recent formulation of the Limitiations clause which proposes a “proportionality mechanism” succeeds in saving the Bill of Rights from over-limitation.
The scaffolding supporting the Bill of Rights NGOs and commentators are increasingly concerned that politicians will have too much influence over the institutions created by the Constitution to uphold the Bill of Rights. While the method of appointment is not finally signed and sealed, the clause in the fourth draft dictates that the Public Protector, the Auditor General and the members of the Human Rights Commission, the Commission for Gender Equality and the Electoral Commission are to be appointed by parliamentary committees, staffed by politicians.
Professor Jeremy Sarkin, the national chair of the Human Rights Committee, believes this method of appointment is dangerous.
“Each political party chooses one person to suit their own ideological position and then he is their person and through them the politicians can control the commissions. This will weaken the groups that are meant to be checking that the politicians uphold the Bill of Rights … What we need is for those commissions to be chosen by civil society.”
Politicians involved in the negotiations disagree with Sarkin. Both Hofmeyr of the ANC and Douglas Gibson of the DP retort: “As MPs, politicians are the elected representatives of civil society, so therefore we are well placed to make the selection.”