Amending South Africa's Constitution: A Step-By-Step Guide

The Constitution of South Africa, which was enacted in 1996, provides the legal foundation for the country's existence as a republic, outlines the rights and duties of its citizens, and defines the structure of the government. Since its enactment, the Constitution has been amended several times to address various issues and evolving needs of the nation. Amending the South African Constitution is a complex process that involves specific procedures and requirements, including the involvement of the National Assembly, the National Council of Provinces, and in some cases, public participation through referendums. Understanding how constitutional amendments are made is crucial for ensuring the country's laws remain relevant and responsive to the changing societal landscape.

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The role of the National Assembly

The National Assembly plays a crucial role in the process of amending the Constitution in South Africa. As the country's primary legislative body, the National Assembly is responsible for initiating and deliberating on any proposed changes to the Constitution. Here is a detailed overview of the specific roles and procedures that the National Assembly must follow in this process:

Initiating Constitutional Amendments

Any amendment to the Constitution of South Africa begins with a proposal introduced in the National Assembly. This proposal can originate from several avenues. Firstly, the

National Council of Provinces

The National Council of Provinces (NCOP) is one of the two Houses of Parliament in South Africa. It is constitutionally mandated to ensure that provincial interests are taken into account in the national sphere of government. This is achieved through participation in the national legislative process and by providing a national forum for the consideration of issues affecting the provinces. The NCOP also plays a role in promoting the principles of cooperative government and intergovernmental relations. It ensures that the three spheres of government work together in performing their unique functions as outlined in the Constitution.

The NCOP consists of 90 provincial delegates, with 10 delegates representing each of the nine provinces. Each province has six permanent and four "special" non-permanent delegates in each delegation. Each delegation is headed by the Premier or a substitute when the Premier is unavailable. The delegation must reflect the proportional strength of the various parties in the province. The South African Local Government Association (SALGA) is also part of the NCOP, with 10 non-voting representatives chosen from a group of representatives from the nine provincial local governments. Each provincial delegation has a provincial whip who coordinates the work of the provincial delegations in the NCOP. The Chief Whip of the NCOP coordinates the business of the House and oversees the duties of the provincial whips.

The NCOP has four decision-making mechanisms depending on the type of bill: Section 74 bills, Section 75 bills, Section 76 bills, and other constitutional amendments. Section 74 bills deal exclusively with constitutional amendments and matters related to the amendments. A bill that amends Section 1 of the Constitution, the Bill of Rights, or any provision affecting the NCOP itself, provincial boundaries or powers, or other specifically provincial matters, must be passed by the NCOP. Each delegation has one vote, and six out of nine delegations must approve the bill for it to pass. Other constitutional amendments must be publicly debated in the NCOP but do not require a vote for passage. Section 75 bills are managed according to the process specified in Section 75 of the Constitution. When voting on these bills, delegates vote individually, and a simple majority is required for approval. Section 76 bills concern the provinces and correlate with areas of combined national and provincial legislative powers.

The NCOP also has committees known as "Select" Committees, which shadow government departments. These committees facilitate public involvement in the law-making and other processes of the NCOP, allowing members of the public to express their views and make representations on legislation and other matters. The NCOP has initiated programmes such as "Taking Parliament to the People" and Provincial Week to facilitate public participation and conduct effective oversight over the executive.

Bills and draft laws

In South Africa, a Bill or draft law can be introduced in Parliament by a Minister, Deputy Minister, parliamentary committee, or an individual Member of Parliament (MP). About 90% of Bills are initiated by the Executive. A Bill is the draft version of a law or Act, and it may propose an entirely new Act, an amendment to an existing Act, or repeal an existing Act.

Before a Bill becomes a law, it must be considered by both Houses of Parliament (National Assembly and National Council of Provinces). It is then published in the Government Gazette for public comment and referred to the relevant committee. It is debated in the relevant committees of Parliament and amended if necessary. If the Bill passes through both the NA and the NCOP, it goes to the President for assent and becomes an Act of Parliament once signed.

Section 74 Bills deal with Constitutional Amendments, and amending the Bill of Rights requires a two-thirds vote of the NA and the support of six provinces in the NCOP. Amendments must be passed by the NCOP. To amend Section 1 of the Constitution, which establishes South Africa as a sovereign, democratic state, and lays out the country's founding values, three-quarters of the members of the NA must vote in support.

Some examples of Constitutional Amendment Bills include the Constitution Nineteenth Amendment Bill, which aimed to limit the frequency of motions of no confidence in the Cabinet or the President, and the Constitution Eighteenth Amendment Bill, which recognised South African Sign Language as an official language.

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National referendums

During the apartheid era, South Africa held referendums with a whites-only electorate to approve constitutional amendments. For example, the Republic of South Africa Constitution Act, 1983, which created a Tricameral Parliament with separate houses for Whites, Coloureds, and Indians but excluded Blacks, was approved through a whites-only referendum. Similarly, the Republic of South Africa Constitution Act, 1961, which replaced the Queen with a State President, was also approved in a referendum with only white voters.

In the transition to democracy, national referendums continued to play a role. In 1992, the South African government, led by State President FW de Klerk, held a referendum asking white voters whether they supported the reforms initiated two years earlier to end the apartheid system. Nearly 69% of the white voters who participated voted in favour of continuing the reform process.

While the current constitution does not explicitly outline a process for national referendums, it does provide a mechanism for amending the constitution. If a two-thirds majority cannot be obtained to pass a constitutional amendment, the text can be adopted by a simple majority and then put to a national referendum, requiring sixty per cent support to pass. This process ensures that significant constitutional changes can be validated through a direct vote of the people when necessary.

To ensure the integrity of national referendums, South Africa has also enacted laws such as the Referendums Amendment Act 97 of 1992, which amended the Referendums Act of 1983. These laws outline rules to promote free and fair referendums, including regulations against intimidation, bribery, and the use of flags or loudspeakers on polling day.

Constitutional Amendments

The Constitution of South Africa 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. It was first enacted in 1909, with the current constitution, the country's fifth, coming into effect in 1997.

The process of amending the constitution is guided by Section 74 of the Constitution, which outlines the requirements for passing a bill to amend the Constitution. This includes achieving a two-thirds majority vote in the National Assembly (at least 267 out of 400 members) and gaining the support of at least six provinces in the National Council of Provinces if the amendment affects provincial powers, boundaries, or the Bill of Rights.

Amending Section 1 of the Constitution, which establishes South Africa as a sovereign, democratic state and outlines its founding values, requires an even higher threshold of three-quarters support from the National Assembly members.

The process of amending the constitution typically involves the following steps:

• A discussion document called a Green Paper is drafted by the relevant ministry or department dealing with the specific issue.
• The Green Paper is published for comments, suggestions, and ideas from the public.
• A White Paper is then developed, which is a refined discussion document outlining the government's policy on the issue. It is drafted by the relevant department or task team.
• Parliamentary committees may propose amendments or additional proposals to the White Paper.
• The document is sent back to the ministry for further discussion, input, and final decisions.
• A Bill is introduced in Parliament by a Minister, Deputy Minister, parliamentary committee, or an individual Member of Parliament (MP).
• The Bill is considered by both Houses of Parliament (National Assembly and National Council of Provinces).
• The Bill is published in the Government Gazette for public comment and then referred to relevant committees for debate and potential amendments.
• If the Bill passes through both Houses, it goes to the President for assent, and once signed, it becomes an Act of Parliament and a law of the land.

It is important to note that the Constitution has been amended multiple times since its promulgation. These amendments address various issues, such as recognising South African Sign Language as an official language and limiting the frequency of motions of no confidence in the Cabinet or the President.

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