Omar Bennett
South Africa's Constitution is the result of detailed and inclusive negotiations that were carried out with an awareness of the injustices of the country's non-democratic past. It is the country's supreme law and no other law or government action can supersede it. The current constitution, the country's fifth, was drawn up by the Parliament elected in the 1994 general election. It was signed into law by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997.
| Characteristics | Values |
|---|---|
| Current constitution | The country's fifth |
| Date of current constitution | 18 December 1996 |
| Date current constitution came into effect | 4 February 1997 |
| Previous constitution | Interim Constitution of 1993 |
| First constitution | South Africa Act 1909 |
| Number of amendments since 1996 | 18 |
| Number of official languages | 11 |
| Human rights | Equality, freedom of expression and association, political and property rights, housing, health care, education, access to information, and access to courts |
| Bill of Rights | 22 rights, including equality, dignity, and life |
| Provinces | 9 |
| Minimum vote required to amend the constitution | Two-thirds majority in the National Assembly and six of the nine provinces in the National Council of Provinces |
| Minimum vote required to amend Section 1 of the Constitution | 75% majority in the National Assembly and agreement from six of the nine provinces in the National Council of Provinces |
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What You'll Learn
South Africa's constitution-making process
The process of creating a new constitution for South Africa began in earnest at the end of apartheid. The Interim Constitution of 1993 was introduced during this transitional period, bringing with it the framework of a liberal democracy, universal adult suffrage, and a bill of rights. Formal negotiations for a new constitution began in December 1991 at the Convention for a Democratic South Africa (CODESA). However, these talks broke down after the second plenary session in May 1992 due to disputes over the process of adopting the new constitution. The African National Congress (ANC) insisted on a democratically elected constituent assembly, while the governing National Party (NP) feared that minority rights would not be protected and proposed a negotiated consensus.
In April 1993, negotiations resumed with the Multi-Party Negotiating Process (MPNP). A committee proposed a set of "constitutional principles" to ensure basic freedoms and protect minority rights, without overly limiting the elected constitutional assembly's role. The 1994 general election resulted in a new parliament that drafted the current constitution, which was promulgated by President Nelson Mandela on 18 December 1996. An impressive 1.7 million submissions from the public were incorporated into this constitution, which was signed into law on 21 March 1996, marking a pivotal moment in South Africa's history.
The South African Constitution of 1996 is a comprehensive document that establishes the country as a sovereign, democratic state and outlines its founding values. It defines the structure of the government, sets out the human rights and duties of citizens, and establishes the nine provinces of South Africa, detailing the powers and structure of their governments. The constitution also includes provisions for effective and transparent budgeting, restrictions on government procurement and borrowing, and the establishment of financial institutions. Furthermore, it guarantees certain rights, such as equality, dignity, and life, which are considered so fundamental that they cannot be reduced or derogated.
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The constitution's contents
South Africa's current constitution, the country's fifth, was drawn up by the Parliament elected in the 1994 general election. It was signed into law by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993.
The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, sets out the human rights and duties of its citizens, and defines the structure of the Government.
The South African Constitution contains 22 major rights, with specific detailed provisions given for each. These rights are considered so important that they are "non-derogable", meaning that they cannot ever be reduced. The rights include "equality", "dignity", and "life", including the right to life, the right to be free from torture, and the right to be free from slavery.
The Constitution also establishes the nine provinces of South Africa and defines the powers and structure of the provincial governments. It provides for a unicameral legislature, a Premier elected by the legislature as the head of the provincial executive, and an Executive Council appointed by the Premier as a provincial cabinet.
The Constitution sets out the structure of the judicial system, defining the hierarchy of courts and establishing a single National Prosecuting Authority responsible for all criminal prosecutions. It also creates several commissions and offices to protect and support democracy and human rights, including the Public Protector (an ombudsman), the South African Human Rights Commission, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.
The Constitution provides that customary international law applies in South Africa unless it conflicts with national law. It also allows Parliament to enact Charters of Rights, which expand on the Bill of Rights, and requires that the Constitution be published in all eleven official languages, with the English text being authoritative in the event of a conflict.
Finally, the Constitution sets out the process for amending the Constitution itself. A bill to amend the Constitution requires a two-thirds majority in the National Assembly, and in some cases, a supermajority of six of the nine provinces in the National Council of Provinces. Amending the section that establishes South Africa as a sovereign, democratic state would require a three-quarters majority in the National Assembly.
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The constitution's history
South Africa's constitutional history and development can be divided into three key phases: the period between 1909 and 1910, the period 1910 to 1990, and the period 1990 to the present.
The period 1909 to 1910 covers the independence period and is the genesis of the constitutional development of South Africa. This period was characterised by the enactment of the South Africa Act by the British Parliament, establishing an independent Union of South Africa comprising the territories of Cape Colony, Orange Free State, Natal, and Transvaal. This was South Africa's first constitution, which was passed by the British House of Commons, despite protests from the African majority. The South Africa Act of 1909 only granted conditional independence, as the British Crown would continue to be a ceremonial head of state represented on the ground by a Governor-General.
The second phase, from 1910 to 1990, was marked by the institutionalisation of exclusionary politics under the system of apartheid, enforced by the Nationalist Party government between 1948 and 1994. This extreme form of legal segregation based on race disenfranchised non-whites and maintained white dominance over political life. The Bantu Authorities Act of 1951 restricted the political participation of blacks, and selective reforms in the 1960s opened limited political space to Asians and Coloureds. In 1960, following a constitutional referendum, South Africa's white voters abolished the Union of South Africa and established a republic, severing all ties with the British Empire. The 1961 Constitution replaced the Crown and the Governor-General with a state president.
The third phase, from 1990 to the present, saw the end of apartheid and the introduction of a transitional Interim Constitution in 1993 to govern the period of democratic reform. Formal negotiations for a new constitution began in December 1991 at the Convention for a Democratic South Africa (CODESA). However, these negotiations broke down due to disputes over the supermajority required for the assembly to adopt the constitution. In 1994, the first multiracial elections resulted in an overwhelming win for the African National Congress (ANC), leading to the election of Nelson Mandela as the first non-white president. The new constitution, the country's fifth, was drawn up by the Parliament elected in the 1994 general election. It was signed into law on March 21, 1996, and came into effect on February 4, 1997, marking a major turning point in South Africa's history. The 1996 Constitution includes a comprehensive bill of rights, considered by many to offer the most extensive human rights protections in the world.
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The constitution's impact
South Africa's constitution is the result of detailed and inclusive negotiations that were carried out with an awareness of the injustices of the country's non-democratic past. It is the highest law of the land, superseding all other laws and government actions. The constitution establishes South Africa as a sovereign, democratic state, and lays out the country's founding values, including human dignity, equality, and the advancement of human rights and freedoms.
The constitution has had a significant impact on South Africa and its people. Firstly, it has provided a legal foundation for the existence of the republic, setting out the human rights and duties of citizens and defining the structure of the government. The bill of rights, which is considered one of the most progressive in the world, offers extensive human rights protections, including the right to life, freedom from torture, and freedom from slavery. These rights are considered so important that they are "non-derogable", meaning they cannot be reduced or revoked.
Secondly, the constitution has helped to address historical injustices and promote equality. It recognises the injustices of the past, including the legacy of apartheid and racial oppression. The constitution provides for 11 official languages, reflecting the country's linguistic diversity and promoting inclusivity. It also guarantees equality for all citizens, regardless of race, gender, or other factors, and protects the rights of marginalised groups, such as the LGBT+ community.
Thirdly, the constitution has contributed to the development of a democratic system of government in South Africa. It establishes the nine provinces of the country and defines the powers and structure of provincial governments, allowing for a degree of autonomy while maintaining a unified national identity. The constitution also sets out the roles and responsibilities of various state institutions, including the courts, security services, and traditional leaders, ensuring a balance of power and respect for the rule of law.
Furthermore, the constitution has empowered citizens by guaranteeing their political and property rights, as well as their rights to housing, health care, education, and access to information and justice. These rights have been widely embraced by South Africans, featuring prominently in public and private discourse. The constitution has also provided a mechanism for holding leaders accountable, as serious violations of its provisions can result in the removal of the president from office.
Overall, the constitution has played a pivotal role in shaping modern South Africa, promoting democratic values, protecting human rights, and fostering national unity and reconciliation. Its impact extends beyond the legal realm, influencing social, political, and cultural aspects of South African society and serving as a foundation for the country's continued development and progress.
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The constitution's legacy
South Africa's current constitution, which came into effect on 4 February 1997, is a written document. It is the country's fifth constitution and was drawn up by the Parliament elected in the 1994 general election. The constitution was promulgated by President Nelson Mandela on 18 December 1996, replacing the Interim Constitution of 1993.
The South African Constitution is the supreme law of the Republic of South Africa. It provides the legal foundation for the republic's existence, sets out the human rights and duties of its citizens, and defines the structure of the government. The constitution-building process was an integral part of the negotiations to end apartheid in South Africa. The African National Congress (ANC) insisted that the constitution should be drafted by a democratically elected constituent assembly, while the governing National Party (NP) feared that minority rights would not be protected in such a process and proposed a negotiated consensus. The CODESA negotiations, which began in December 1991, broke down after the second plenary session in May 1992 due to disputes over the supermajority required for the assembly to adopt the constitution. The parties returned to negotiations in April 1993 through the Multi-Party Negotiating Process (MPNP), which proposed a collection of "constitutional principles" to ensure basic freedoms and protect minority rights.
The South African Constitution has had a significant legacy in shaping the country's democratic institutions and upholding the values for which millions of people fought. The Constitutional Court, established by the Constitution, played a crucial role in interpreting and enforcing the Constitution, ensuring peace, security, and freedom. The Bill of Rights, which forms a major section of the Constitution, is considered by many to offer some of the most extensive human rights protections in the world. Certain rights, such as equality, dignity, and life, are deemed "non-derogable" and cannot be reduced. The Constitution also establishes the nine provinces of South Africa, defining their powers and structure, and provides for a unicameral legislature and an Executive Council appointed by the Premier.
The Constitution has been amended eighteen times since 1996 to address various issues. For example, the Constitution Second Amendment Act extended the term of office for municipal councils and addressed aspects of the transition to the post-apartheid system of local government. The Constitution has also been amended to clarify the structure of the South African judiciary, including the roles and titles of judges in the Constitutional Court, the Supreme Court of Appeal, and their deputy heads.
Overall, the South African Constitution has been a critical factor in the country's transition to a constitutional democracy, promoting peace, security, and the protection of human rights. Its legacy is reflected in the country's institutions, values, and the day-to-day lives of its citizens.
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Frequently asked questions
Yes, South Africa has a written constitution, which is the supreme law of the Republic of South Africa.
South Africa's constitutional history can be divided into three key phases: the period between 1909 and 1910, the period 1910 to 1990, and the period 1990 to the present. The first constitution was enacted in 1909, establishing an independent Union of South Africa. Since then, South Africa has had four more constitutions, with the current one being the fifth.
The South African Constitution provides for 11 official languages and establishes the nine provinces of the country. It also sets out the human rights and duties of citizens, including rights to equality, dignity, life, freedom of expression, and freedom from torture and slavery.
The South African Constitution recognises the injustices of the country's past and seeks to promote equality and protect human rights. It also provides for the protection of specific cultural and linguistic groups, such as the Khoi, Nama, and San communities.
According to Section 74 of the Constitution, a bill to amend the Constitution requires a two-thirds majority in the National Assembly and a supporting vote from six of the nine provinces in the National Council of Provinces. Amending Section 1, which establishes South Africa as a sovereign, democratic state, requires a 75% majority in the National Assembly.
