The Constitution was signed this week at Sharpeville. Guest writer Pippa Green takes a look behind the scenes
THERE is a moment in the making of the Constitution when Sheila Camerer of the National Party asks, “What are universally accepted fundamental rights? Perhaps we need a workshop to discuss them?”
It is a moment way back in early 1995 in the days when the Constitutional theme committees were clearing the undergrowth in the drafting of the new constitution. The pruning came much later.
This theme committee is discussing fundamental rights. Kadar Asmal, constitutional lawyer and minister of water affairs, replies: “You might not know what universally accepted fundamental rights are, but we do. We’ve been fighting for that all our lives. The National Party might need a workshop, but we in the ANC don’t.”
There is a moment even before that when, at the ANC’s Ready to Govern conference in 1992, a comrade stands up during the health policy discussion and asks whether homosexuality should not be discussed under health. No, replies Barbara Masakela, then an administrator in Nelson Mandela’s office and now ambassador to France, because that is a human rights issue – not a health issue.
These have been some of the defining moments in the making of the Constitution.
Its guidelines were the constitutional principles negotiated in 1993. Now, says Fink Haysom, who has spent this year being presidential law adviser by day, constitutional trouble-shooter and drafter by night, “we have one of the most advanced Bills of Rights. Experts in democratic countries look with considerable envy at our Constitution.”
Why? There is an equality clause that covers, among other things, race, gender, pregnancy, sexual orientation, disability, culture, religion, birth and language. There is the right to bodily integrity and freedom to make decisions about reproduction.
There is the right to a healthy environment, the right of access to health services, water and housing.
There is substance and there are words. There are the words in the hotly disputed sub-clause (8) of the property clause that, notwithstanding the right to own property, the state can make laws to achieve land and water reform to redress past racial discrimination.
Asmal is delighted at the water part. Freedom Front MP Constand Viljoen says the clause is wide enough to turn an ox-wagon around in.
“Words do count,” says Halton Cheadle, a labour lawyer and critical backroom boy in the drafting process.
One night, a week before the May 8 deadline, Cheadle hands Cyril Ramaphosa, Constitutional Assembly chair, a document. Ramaphosa reads: “The rights in this Constitution are limited only to the extent that they are limitable.”
He smiles, but cracks up later as he gasps his way through this: “In a spirit of decency and propriety, all organs of state must remain in their own functional areas and not encroach in the functional areas pertaining to other organs.” Has the moral high ground been lost?
More serious words immunised the Labour Relations Act (that allows a lock-out) against constitutional challenge.
The Constitutional Court said no, the Constitution must be the supreme law. New words said every employer can engage in collective bargaining. That means using economic power, maybe even a lock-out.
“Labour thinks they’ve won because there’s no lock-out clause. The employers think they’ve won because individual employers can engage in collective bargaining,” says Cheadle. “I don’t want to be the one to wake them up, but there’s no one winner.”
So many words, but there is little doubt that the substance of the new Constitution has been shaped by the ANC. The other parties reacted to our proposals, says ANCnegotiators, we were putting proposals on the table.
There is even a tacit admission of this from National Party leader FW de Klerk, on May 8, adoption day, he says that the NP had improved many original proposals.
And the Democratic Party’s Tony Leon now says, thanks to the DP’s intervention, the constitution is “less worse” than it could have been.
Just like the ANC’s Willie Hofmeyr, speaking in the early morning on adoption day after negotiators had just clinched the first deal on the lock-out: “No one is really happy with this, but the fact that we are all a little unhappy should make everyone a little happier.”
There is a long moment in the making of the Constitution when posters go up: “The new Constitution will be written by the most important person in the country: YOU.”
The slogan is plastered on buses. Domestic workers travel on these buses out of town, past Parliament, to their white homes. Will they write the Constitution?
This moment is filled with words, millions of words that come from the public. Some two million submissions are collected, acknowledged, bound by the Constitutional Assembly staff. Most are to do with rights.
People want rights. Sometimes they want to stop other people from having rights. There is little interest in what fascinates the politicians, which are the structures of government.
“The Bill of Rights is only one part of the Constitution,” says Haysom. “But a constitution is a way of regulating the way in which society makes choices. In terms of structures of government it has the most nuanced and comprehensive elaboration of democracy yet to be found anywhere.
“The Germans envy the way provincial legislators have been brought into the body politic, the Canadians envy the system of co-operative federalism because their federal system has paralysed them, and American liberals envy the fact that our president is accountable to Parliament, unlike theirs.”
But the people – those who write in, anyway – want to speak about rights. Police should have no right just to enter your home, writes a man from Wierda Park. In the past they just used to kick the door down. And, oh yes, we should have the right to keep fowls on our property.
The Angora Goat Stud Breeders write to Ramaphosa asking him to protect the rights of owners of animals. Animal-rights activists ask that animal rights be protected.
There are political party submissions, submissions from pro-choice groups, women’s groups, the Anglican church. There are letters from the gunowners’ association, the paleantological society (who want citizens to have the freedom to appreciate South Africa’s fossil heritage), from traditional healers, from Friends of the Pig, from the Chess Society, who want chess as a national game.
There are submissions on language. An Atteridgeville man does not want his mother tongue, Sepedi, referred to as Northern Sotho. He also wants a clause protecting nature.
A man from Northcliff wants a constitutional right to pay back a mortage bond at a fixed interest rate. A young Claremont woman writes: “My philosophy is that anarchy is the best way for a country to exist in harmony…” People should have the right to do as they want to their bodies, be it drug ingestion or suicide.
There are many for the death penalty, and some who want castration for rapists and torture, mutilation and sterilisation for criminals.
Form letters arrive, listing three points: pornography, homosexuality and abortion. “While we support freedom of speech and the end of the oppressive apartheid standpoint in this area…,” they all start. Carefully listing points under three headings, they ask for censorship, no gay marriages and no abortion.
One woman from Rondebosch gets a little mixed up and beneath point two, on sexual orientation, she talks about pornography. “Pornography insights [sic] men to rape. It is mainly imported from European countries, therefore many white women are seen in the movies. Will this not make a black woman feel she is not sexually attractive?”
The right to be sexually attractive, perhaps? Seriously, Haysom got on his desk, during the moments of early drafting last year, submissions from the ANC feminist lobby asking for clauses such as the right of women not to be harassed.
There are the cries from the heart: a 21- year-old who had an illegal abortion and nearly bled to death, an unmarried father who can’t see his child, a mineworker from Carletonville on unfair dismissal. “Thanks for this wonderful opportunity I never experienced,” he writes.
Did they count? At first, Cheadle chuckles. Then he says:”A lot of work was put into analysing the stuff.”
My colleague, the poet Antjie Krog, says it was an exercise that focused people on human rights in a country where they’d been alien. Haysom says many have been incorporated into the Constitution, albeit not as concretely as the right to keep fowls.
But, he warns, lobby groups are not necessarily “the people”. Democracy is about elected representatives drafting the Constitution, not listening to those who shout the loudest.
There are moments when it doesn’t seem that the Constitutional Assembly will meet its deadline. Shortly before May 8, a Freedom Front member asks Ramaphosa for more time. “The Inkatha Freedom Party (which walked out long before) may come back,” he says. “Perhaps we should wait for them.”
“If you know something we don’t know,” says Ramaphosa, “please share it with us. I assure you there is no one in this room who can’t keep a secret.” He looks around the room full of politicians, constitutional advisers and journalists, with a straight face.
It is part of Ramaphosa’s inimitable chairing style, this deadpan humour that keeps the pace moving.
“Ah yes. I was missing your chirpy voice, Ms Smuts, ” he tells the Democratic Party’s Dene Smuts, who raises her hand after an uncharacteristic silence in what seems like the three-millionth discussion of the property clause. And enthusing over the right of freedom of residence, he says to his deputy, Leon Wessels: “Just imagine. I can live anywhere I want … Kakamas, Pofadder, Kareedouw …” Not so funny a mere decade ago in the days of pass laws.
As the minutes got further away from midnight, the sensitivities heightened. An ANC member once joked that his party could get anything through after 2am because they had more stamina than the National Party. The remark ended up in print, and after that the NP caucus advised its negotiators to try to wrap up talks by seven.
Then there is the moment when everything is stuck around three clauses: property, the lock-out, and the right to single-medium education. The Nats want this, the ANC says mother-tongue education, yes, not single- medium.
The irrepressible Cheadle slips a paper to the chair after yet another midnight bilateral. Ramaphosa announces a deal and starts to read: “Any employer will have the right to lockout any worker for whatever reason, so long as that reason is not arbitrary.”
Section 8 of the property clause will go, he continues. Smuts cheers. It’ll be replaced by a section that reads: “Any land can be expropriated for any reason whatsoever.”
And anybody may have the right to single- medium instruction as long as the medium is Afrikaans.
When the real agreement is bartered, it looks for a moment as though the NP will swop its constituency for money.
Its negotiators agree to new words in the education clause allowing mother-tongue education in single-medium schools where practicable. But they ask for the pensions of politicians to be guaranteed.
The proposal meets with derision from the ANC minister Valli Moosa. “What we are doing here is drafting a constitution. We did not think this was a document that would grant politicians privileges.”
There is a brief moment when everyone owns the new Constitution in the Constitutional Assembly – until the ANC members break off their victory song and start up an ANC chant.
There are the 48 hours in September, after the Constitutional Court sends the document back for reworking, when the Constitutional Assembly commissions Haysom, Cheadle and Wim Trengove, the assembly’s advocate, to draft memos on the judgment. There is a moment when everything hangs in the balance.
When the Constitution is passed again, on October 11, Haysom looks for someone to go for a celebratory drink with and has trouble finding anyone. Eventually he bumps into the ANC’s Pravin Gordhan, who says he’d rather have coffee. “It reflects that the real achievement in the minds of most was on the eighth of May,” he says.
A Bill of Rights, separation of powers, a president accountable to Parliament, independent monitoring institutions. A word here, a word there. The big things and small.
“How do you feel?” I ask Cheadle. He laughs. I push. “Well,” he says, “perhaps there’ll be a moment in the future when I’m bouncing my grandchildren on my knee and I’ll be able to say: `Hey! See this clause here … I got that second word in’.”