The final constitution

The Constituent Assembly (CA), consisting of 400 members of the National Assembly and 90 members of the Senate, met for the first time on 24 May 1994 and elected Cyril Ramaphosa (ANC) as chairperson and Leon Wessels (NP) as deputy chairperson.

It had to pass a new constitutional text within two years of the first meeting of the National Assembly, namely 9 May. A deadlock-breaking mechanism could be invoked if required. The CA required a two-thirds majority for passing the text. The ANC let it be known publicly that if agreement on the full draft could not be reached it would invoke the deadlock-breaking mechanism, going all the way to a referendum – which it knew it would win – and thereafter consider reverting to its own original draft, and not the negotiated text.

With over 62% of the votes in the founding election, the ANC possessed considerable weight in the CA’s deliberations, but even with the possible support of the PAC, its majority fell short of two-thirds. Compromises would be necessary.

The 34 principles, already largely woven into the text of the interim constitution, provided a framework, but many details required to be elaborated or expanded – and in those details lurked many devils.

The difficult questions in the negotiations related less to the structure of the executive and the concept of a Government of National Unity, which had been resolved at the Multiparty Negotiating Process, than to a range of seemingly more technical matters, which turned out to be important and difficult to resolve. The deadline of 8 May 1996 imposed great stress on the principal negotiators. The discussions focused on:

• The relationship between the national and provincial governments.

• The extent to which – if at all – property should enjoy constitutional protection.

• Matching the rights of trade unions to bargain collectively and to strike with a right of employers to enforce lockouts.

• The death penalty.

• The procedure for appointing judges, the attorney-general, the auditor-general and other officials, whose posts required strict impartiality and security of tenure, in such a way that the political factor in their appointments was circumscribed.

• The official language(s).

• Whether the constitution should allow single-medium schools (which in practice meant Afrikaans-medium schools).

• Whether the Bill of Rights should include ‘second-generation’ or socio-economic rights, and whether rights could be limited during states of emergency.

Thabo Mbeki's Speech - I am an African