Simone Lawson
South Africa's transition from a temporary to a permanent constitution is a complex and protracted process, marked by historical events and negotiations. The country's constitutional development can be divided into three key phases: the independence period from 1909 to 1910, the era from 1910 to 1990, and the period from 1990 onwards. The foundation of South Africa's constitutional journey was laid with the enactment of the South Africa Act by the British Parliament in 1909, marking its independence from colonial rule. However, this act only granted limited independence, as the British Crown retained a ceremonial role. The country's first constitution was enacted in 1909, and subsequent constitutional changes occurred in 1934, 1960, and 1961, gradually diminishing the influence of the British Crown and establishing a republic. The end of apartheid in the 1990s brought about a significant shift towards a permanent constitution. Formal negotiations began in 1991, aiming to establish a transitional constitution to pave the way for an elected constitutional assembly to draft a permanent one. Despite initial disputes and breakdowns, the process culminated in the promulgation of the current constitution in 1996, which came into effect in 1997, marking a move away from the temporary constitutions and amendments of the past.
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What You'll Learn
The Freedom Charter
South Africa's transition from a temporary to a permanent constitution was a lengthy process marked by negotiations, campaigns, and significant milestones. One of the pivotal moments in this journey was the adoption of the Freedom Charter in 1955.
The Congress of the People Campaign, initiated by the African National Congress (ANC) and its allies, invited all South Africans to record their demands for the future of the country. Thousands participated in this campaign, sending in their aspirations for a democratic and non-racial South Africa. These demands were consolidated into the Freedom Charter, making it a unifying document for the liberation forces in the country.
The Congress of the People, which gathered in Kliptown on June 25 and 26, 1955, was a diverse assembly of 3,000 delegates comprising workers, peasants, intellectuals, women, youth, and students of all races and colours. This gathering, the most representative in South Africa's history, embraced the Freedom Charter as a vision for a united and democratic nation. The delegates asserted that "South Africa belongs to all who live in it, black and white, and no government can justly claim authority unless it is based on the will of all the people."
The adoption of the Freedom Charter was a significant step in South Africa's journey towards a permanent constitution. It laid the foundation for further negotiations and campaigns that ultimately led to the establishment of a constitutional democracy and the election of Nelson Mandela as the country's first non-white president in 1994.
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The end of apartheid
Apartheid was a system of institutionalised racial segregation that existed in South Africa from 1948 until the early 1990s. It was characterised by an authoritarian political culture based on baasskap, or 'boss-hood', which ensured that South Africa was dominated politically, socially, and economically by the nation's minority white population.
In the 1970s, the Black Consciousness Movement (BCM), influenced by the Black Power movement in the US, endorsed black pride and African customs, helping to alter the feelings of inadequacy instilled among black people by the apartheid system. In 1976, secondary students in Soweto took to the streets in the Soweto uprising to protest against the imposition of Afrikaans as the only language of instruction. On June 16, police opened fire on students protesting peacefully, with estimates of up to 700 people killed.
In the 1980s, as the oppressive system was slowly collapsing, the ANC and National Party started negotiations on the end of apartheid. In 1989, FW de Klerk became State President, and the Mass Democratic Movement organised a defiance campaign. On October 15, several ANC leaders were freed, and in December, Nelson Mandela met with top NP cabinet ministers and wrote a letter to de Klerk warning of the urgent need for negotiations.
On February 2, 1990, de Klerk announced the unbanning of the ANC, the South African Communist Party, and other liberation movements. Nelson Mandela was released from prison, and negotiations to end apartheid began. Apartheid legislation was officially repealed on June 17, 1991, leading to non-racial elections in April 1994. On March 17, 1992, white South Africans voted overwhelmingly in a referendum to end minority rule, by a margin of 68.7% to 31.2%.
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The creation of a new constitution
The country's constitutional development can be divided into three key phases: the first, from 1909 to 1910, saw the enactment of the South Africa Act by the British Parliament, establishing an independent Union of South Africa. This act was South Africa's first constitution, though it maintained British involvement in matters of foreign policy and international relations.
The second phase, from 1910 to 1990, was characterised by the institutionalisation of exclusionary politics under the system of apartheid, enforced by the Nationalist Party government from 1948. During this period, the discriminatory electoral structure of the constitution disenfranchised non-whites, and various pieces of legislation, such as the Bantu Authorities Act in 1951, restricted the political participation of blacks. However, there were also significant movements towards change, with the ANC Youth League and the Congress Movement running a mass defiance campaign in the late 1950s and the 1960s, and the South African Students Organisation and the Black Consciousness Movement bringing the ideas of identity and dignity to the struggle for freedom and equality in the late 1960s and 1970s.
The third phase, from 1990 onwards, saw the end of apartheid and the introduction of an interim constitution in 1993, which provided the framework for a liberal democracy, universal adult suffrage, and a bill of rights. Formal negotiations for a permanent constitution began in 1991 at the Convention for a Democratic South Africa (CODESA), but these broke down due to disputes over the required majority for the assembly to adopt the constitution. Negotiations resumed in 1993 as the Multi-Party Negotiating Process (MPNP), and the current constitution was drawn up by the Parliament elected in the 1994 general election, which saw the ANC win with a 62% majority. The constitution was promulgated by President Nelson Mandela in 1996 and came into effect in 1997. It has since been amended eighteen times, with amendments addressing issues such as floor crossing in the National Assembly and provincial legislatures, and changes to the procedure for intervention by the national government in failing provincial governments.
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The role of the elected constitutional assembly
South Africa's transition from a temporary to a permanent constitution was a significant moment in the country's history, and the role of the elected constitutional assembly was pivotal in this process.
The country's constitutional development can be divided into three phases: the first, from 1909 to 1910, marked by the enactment of the South Africa Act by the British Parliament, which established an independent Union of South Africa. The second phase, from 1910 to 1990, saw the institutionalisation of apartheid, a system of racial segregation enforced by the Nationalist Party government. The third phase, from 1990 onwards, witnessed the end of apartheid and the transition to a democratic constitution.
The CODESA negotiations broke down after the second plenary session in May 1992, but negotiations resumed in April 1993 with the Multi-Party Negotiating Process (MPNP). A committee proposed a set of "constitutional principles" to guide the final constitution, ensuring basic freedoms and minority rights without limiting the elected constitutional assembly's role.
South Africa held its first democratic election in April 1994 under an interim Constitution, with the ANC winning a 62% majority. This election paved the way for the permanent constitution, which was drawn up by the Parliament elected in 1994 and promulgated by President Nelson Mandela in December 1996. It came into effect on 4 February 1997, replacing the Interim Constitution of 1993.
The current constitution, South Africa's fifth, sets out the country's legal foundation, human rights, citizens' duties, and government structure. It has been amended several times to address issues such as provincial powers, minority rights, and the Bill of Rights, reflecting the dynamic nature of South Africa's constitutional democracy.
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The National Development Plan
South Africa's transition from a temporary to a permanent constitution was a significant step in the country's journey towards democracy and equality. The country's constitutional history can be divided into three key phases: the period between 1909 and 1910, which marked its independence from British rule; the period from 1910 to 1990, characterised by institutionalised racial segregation; and the period from 1990 onwards, during which South Africa transitioned to a constitutional democracy.
The first South African constitution, the South Africa Act of 1909, was enacted by the British Parliament and established an independent Union of South Africa, comprising the territories of Cape Colony, Orange Free State, Natal, and Transvaal. This constitution lasted until 1961 when the Statute of Westminster, passed by the British Parliament in 1931, removed many constitutional limitations on British dominions, reducing the role and presence of the British Crown. In 1960, South Africa's white voters voted in a referendum to abolish the Union and establish a republic, which was formally declared in 1961.
The period from 1910 to 1990 was marked by institutionalised racial segregation, known as apartheid, enforced by the Nationalist Party government. The apartheid regime was characterised by discriminatory legislation and a constitutional framework that maintained white dominance over political life. Non-whites were disenfranchised and excluded from political participation, with limited reforms in the 1960s and 1980s offering some political space to Asians and Coloured individuals.
The transition to a permanent constitution began in the early 1990s, with the end of apartheid and the unbanning of liberation movements such as the African National Congress (ANC) in 1990. Formal negotiations commenced in December 1991 at the Convention for a Democratic South Africa (CODESA), where it was agreed that a transitional constitution would provide for an elected constitutional assembly to draft a permanent constitution. However, disputes arose over the majority requirement for adopting the constitution, and the CODESA negotiations broke down.
In April 1993, negotiations resumed in the Multi-Party Negotiating Process (MPNP), which proposed the development of "constitutional principles" to ensure basic freedoms and minority rights. South Africa held its first democratic election under an interim constitution in April 1994, with the ANC winning a 62% majority. The current permanent constitution, the country's fifth, was drawn up by the Parliament elected in this 1994 general election. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997.
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Frequently asked questions
The first constitution of South Africa was enacted by the South Africa Act 1909.
The Constitution of the Republic of South Africa, 1993, or the Interim Constitution, was introduced at the end of apartheid to govern the period of transition. It introduced the framework of a liberal democracy, universal adult suffrage, and a bill of rights.
The current constitution of South Africa, the country's fifth, was drawn up by the Parliament elected in the 1994 general election. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997.
Formal negotiations began in December 1991 at the Convention for a Democratic South Africa (CODESA). The parties agreed on a process whereby a negotiated transitional constitution would provide for an elected constitutional assembly to draw up a permanent constitution. The final constitution was promulgated by President Nelson Mandela on 18 December 1996.
