Jonah Patel
The Constitution of the Republic of South Africa, 1996 is the supreme law of the Republic of South Africa. It was promulgated 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 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. Since 1997, the Constitution has been amended eighteen times.
| Characteristics | Values |
|---|---|
| Date Enacted | 4 December 1996 |
| Jurisdiction | Republic of South Africa |
| Legal System | Mixed legal system of civil law, common law, customary law, and religious law |
| Legislative History | Enacted by the Parliament of South Africa and came into effect on 4 February 1997, replacing the interim constitution of 1993 |
| Amendments | Amended several times, with the most recent amendment being the Twenty-first Amendment, which came into force on 28 July 2022 |
| Influences | Influenced by the constitutions of Canada, Germany, and India, as well as international human rights instruments |
| Structure | The constitution includes a bill of rights, defines the structure and powers of the government, and establishes the principles and procedures for amending the constitution |
| Rights Protected | Fundamental human rights, including political, social, economic, and cultural rights; equality before the law; freedom of movement and residence; freedom of speech, assembly, and association; and freedom of trade, occupation, and profession |
| Territorial Applicability | Applies to all provinces and local governments within the Republic of South Africa |
| Supremacy | The constitution is the supreme law of the land, and any law or conduct inconsistent with it is invalid |
| Interpretation | The Constitutional Court is the highest judicial body for interpreting and enforcing the constitution |
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What You'll Learn
The constitution is the supreme law of the Republic of South Africa
The Constitution of South Africa is the supreme law of the Republic of South Africa. It was drawn up by the Parliament elected in the 1994 general election and promulgated by President Nelson Mandela on 18 December 1996. The Constitution came into effect on 4 February 1997, replacing the Interim Constitution of 1993, which was introduced at the end of apartheid to govern the period of transition.
The Constitution of the Republic of South Africa, 1996, is the country's fifth and current constitution. 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 Constitution is formally entitled the "Constitution of the Republic of South Africa, 1996," and has been amended by eighteen amendments since it came into effect.
The process of drafting the Constitution involved a massive public participation programme led by the Constitutional Assembly to solicit views and suggestions from the public. On 8 May 1996, a new text was adopted with the support of 86% of the members of the assembly. However, in the First Certification judgment delivered on 6 September 1996, the Constitutional Court refused to certify this text. The current Constitution was the result of further negotiations and compromises.
Chapter 14 of the Constitution repeals the Interim Constitution and refers to Schedule 6 to govern the transition process. It also gives the Constitution its formal title and defines the schedule for its commencement. Schedule 1, referred to in Chapter 1, describes the national flag, while Schedule 1A defines the geographical areas of the provinces. The Constitution outlines the procedure for the election of the President and the duties of political office-holders and judges.
The Constitution of South Africa, as the supreme law of the land, can only be amended through a specific process. According to Section 74, a bill to amend the Constitution requires at least two-thirds of the members of the National Assembly to vote in favour of it. Additionally, if the amendment affects provincial powers or the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it. Amending Section 1 of the Constitution, which establishes South Africa's sovereignty and founding values, would require the support of three-quarters of the members of the National Assembly.
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It sets out the human rights and duties of citizens
The Constitution of the Republic of South Africa, 1996, sets out the human rights and duties of its citizens. It is the supreme law of the Republic of South Africa and provides the legal foundation for the existence of the republic. The Bill of Rights, now in Chapter Two of the Constitution, is a cornerstone of democracy in South Africa. It enshrines the rights of all people in the country and affirms the democratic values of human dignity, equality, and freedom.
The Bill of Rights applies to all law and binds the legislature, the executive, the judiciary, and all organs of state. It also binds natural and juristic persons to the extent that it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. The state must respect, protect, promote, and fulfil the rights in the Bill of Rights. However, these rights are subject to limitations contained in Section 36 or elsewhere in the Bill.
The Constitution guarantees the right to freedom of association and assembly. Citizens have the right to make political choices, including the right to vote in elections and stand for public office. It also ensures that no citizen may be deprived of their citizenship. Every citizen has the right to choose their trade, occupation, or profession freely, although the practice may be regulated by law.
The Constitution also addresses land reform and equitable access to natural resources. It mandates the state to take reasonable legislative and other measures to foster conditions that enable citizens to gain access to land on an equitable basis. This provision addresses historical injustices by providing redress for those affected by past racially discriminatory laws or practices.
The Constitution of the Republic of South Africa, 1996, has been amended several times since its promulgation, ensuring that the rights and duties of citizens are kept up-to-date and relevant to the evolving needs of the nation.
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Defines the structure of the government
The Constitution of the Republic of South Africa, 1996, is the country's supreme law and outlines the legal foundation for the existence of the republic. It defines the structure of the government and sets out the human rights and duties of its citizens.
The Constitution establishes South Africa as a sovereign, democratic state and outlines the country's founding values. It provides for a parliamentary system of government, with a President as the head of state and a National Assembly as the legislative body. The President is elected by the National Assembly, and the legislative body elects presiding officers. The Constitution also establishes a Constitutional Court to interpret and enforce the Constitution.
The National Assembly is made up of 400 members, and it has the power to pass bills to amend the Constitution. However, for a constitutional amendment to be passed, at least two-thirds of the members of the National Assembly must vote in favour of it. If the amendment affects provincial powers or boundaries or amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it.
The Bill of Rights, now in Chapter Two of the Constitution, was largely written by Kader Asmal and Albie Sachs. It guarantees the fundamental rights and freedoms of all South African citizens, including freedom of speech, religion, and assembly, as well as equality before the law. The Constitutional Court is responsible for interpreting and enforcing the Bill of Rights.
Since its promulgation in 1996, the Constitution of the Republic of South Africa has been amended eighteen times. These amendments have been made to address changing political, social, and economic realities in the country and to ensure that the Constitution remains a relevant and effective framework for governance.
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Outlines the process of transition from the Interim Constitution
The Constitution of the Republic of South Africa, 1996, outlines the process of transition from the Interim Constitution of 1993, which was introduced at the end of apartheid to govern the period of transition. The Interim Constitution provided a framework for a liberal democracy, universal adult suffrage, and a bill of rights. It also introduced a Parliament with two houses: a 400-member National Assembly and a 90-member Senate.
The process of drafting the final constitution involved extensive public participation, with the Constitutional Assembly engaging in consultations to solicit views and suggestions from ordinary citizens, civil society, and political parties. The Constitutional Assembly consisted of both houses of Parliament sitting together and was responsible for drafting the final constitution within two years. The final text had to comply with 34 Constitutional Principles agreed upon during the Multi-Party Negotiating Process (MPNP).
The new constitutional text was then tested against these principles by the newly established Constitutional Court. If the text complied with the principles, it would become the new constitution. If not, it would be referred back to the Constitutional Assembly. On May 8, 1996, the Constitutional Assembly completed its work on the draft of the final constitution, which was intended to replace the Interim Constitution by 1999.
The final constitution made some significant changes, such as replacing the Government of National Unity with a majoritarian government, which critics referred to as a "winner-take-all" arrangement in national elections. This enabled the majority party to appoint cabinet members and other officials without necessarily consulting minority parties.
Chapter 14 of the final constitution repealed the Interim Constitution and referred to Schedule 6 to govern the process of transition to the new Constitution. Schedule 6 detailed the transitional arrangements, providing for the continuation of existing laws and the conversion of institutions under the previous constitution into those established by the new constitution.
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Describes the procedure for the election of the President
The Constitution of the Republic of South Africa, 1996, outlines the procedure for the election of the President in Chapter 5: The President and National Executive.
The President is elected by the National Assembly, the lower house of Parliament, and must be a member of the Assembly at the time of the election. The Chief Justice must preside over the election, or they can designate another judge to do so. The election procedure is set out in Part A of Schedule 3.
The process begins with the nomination of candidates. Each nomination must be made on a prescribed form and signed by two members of the National Assembly. The person presiding over the meeting must then announce the names of the nominated candidates and call for any further nominations. If there is only one candidate, they are automatically declared the winner. If there is more than one candidate, a vote is held, and the candidate with the majority of votes is elected.
If there is a tie between two candidates, a further meeting must be held within seven days, and the election procedure is repeated. If no candidate receives a majority vote, the candidate with the lowest number of votes is eliminated, and another round of voting takes place.
Once a President is elected, they must resign their seat in the National Assembly and assume office within five days, swearing faithfulness to the Republic and obedience to the Constitution. The President's term begins at this point and ends when their term limit is reached or a new President is elected.
The President of South Africa holds significant powers, including executive authority, the ability to implement national legislation, and the power to appoint various officials, including Cabinet ministers and justices of the Supreme Court and Constitutional Court.
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Frequently asked questions
The Constitution of the Republic of South Africa, 1996, is the supreme law of the country. It outlines the human rights and duties of citizens and defines the structure of the government.
The Bill of Rights, now in Chapter Two of the Constitution, was largely written by Kader Asmal and Albie Sachs. The new constitutional text was tested against the principles of the Bill of Rights by the newly established Constitutional Court.
The Constitution was drawn up by the Parliament elected in the 1994 general election. It was promulgated by President Nelson Mandela on December 18, 1996, and came into effect on February 4, 1997. The Constitution was amended 18 times since 1997.
According to Section 74 of the Constitution, a bill to amend it requires a two-thirds majority vote in the National Assembly. If the amendment affects provincial powers, the Bill of Rights, or the section establishing South Africa as a sovereign, democratic state, the threshold for approval is higher.
