Simone Lawson
South Africa's current constitution, its fifth, was formed in 1996, promulgated by President Nelson Mandela, and came into effect in 1997. It was an integral part of the negotiations to end apartheid in South Africa, with the African National Congress (ANC) insisting that it should be drawn up by a democratically elected assembly. The constitution 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 is considered one of the most progressive in the world.
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What You'll Learn
The constitution's role in ending apartheid
South Africa's constitutional history has been divided into three phases: the period between 1909 and 1910, the period between 1910 and 1990, and the period from 1990 to the present. The country's first constitution, the South Africa Act, was enacted by the British Parliament in 1909, establishing an independent Union of South Africa. However, this constitution only granted limited independence, as the British Crown retained a ceremonial role, and certain British parliamentary acts continued to apply in South Africa.
The process of ending apartheid in South Africa involved the creation of a new constitution. The African National Congress (ANC) insisted that the new constitution should be drafted by a democratically elected constituent assembly, while the governing National Party (NP) feared that the rights of minorities would not be adequately protected in such a process. Formal negotiations began in December 1991 at the Convention for a Democratic South Africa (CODESA). Despite a breakdown in the negotiations, a transitional constitution was agreed upon, paving the way for an elected constitutional assembly to draft a permanent constitution.
South Africa's first non-racial elections were held on April 27, 1994, marking the end of white minority rule. The newly elected parliament, led by President Nelson Mandela, began drafting a new constitution, with input from all South Africans. This process resulted in a progressive constitution that promotes democratic values, social justice, and fundamental human rights for all citizens. The current constitution, the country's fifth, was promulgated by President Mandela on December 18, 1996, and came into effect on February 4, 1997.
The South African Constitution is the supreme law of the land and provides a legal foundation for the republic, outlining the human rights and duties of citizens and defining the government's structure. It aims to heal the divisions of the past, improve citizens' quality of life, and establish a democratic and open society based on the will of the people. The constitution has been amended several times to extend the term of office for municipal councils, facilitate the transition to a post-apartheid system of local government, and ensure the protection of human rights.
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The process of adoption
The current South African constitution is the country's fifth and was formed as an integral part of the negotiations to end apartheid in South Africa. The African National Congress (ANC) insisted that the constitution should be drawn up by a democratically elected constituent assembly. On the other hand, the governing National Party (NP) feared that the rights of minorities would not be protected in such a process and proposed that the constitution be negotiated by consensus between the parties and then put to a referendum. 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 pave the way for an elected constitutional assembly to draft a permanent constitution. However, the CODESA negotiations broke down after the second plenary session in May 1992. In 1994, the end of white minority rule resulted from international pressure, democratic winds of change blowing across Africa, and increasingly violent revolutionary forces within South Africa. These factors forced the National Party (NP) government of President F. W. de Klerk to introduce reforms, resulting in the election of Nelson Mandela as the country's first non-white president.
The current constitution 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, replacing the Interim Constitution of 1993. The Constitution is formally entitled the "Constitution of the Republic of South Africa, 1996." It was approved by the Constitutional Court on 4 December 1996. The Constitution First Amendment Act was signed by the President on 28 August 1997 but had effect retroactively to 4 February 1997 when the constitution came into force.
Since 1997, the Constitution has been amended by eighteen amendments. The Constitution Second Amendment Act came into force on 7 October 1998, and the Third Amendment Act came into force on 30 October 1998. The Fourth and Fifth Amendment Acts were passed separately in 1999 due to provisions affecting provincial government, requiring the approval of the National Council of Provinces.
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The country's founding values
South Africa's Constitution is one of the most progressive in the world, enjoying high acclaim internationally. The country's founding values are enshrined in Section 1 of the Constitution, which can only be amended with the support of three-quarters of the members of the National Assembly.
The Constitution of the Republic of South Africa, 1996, was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. It was approved by the Constitutional Court on 4 December 1996 and is the country's fifth and supreme law. The Constitution sets out the human rights and duties of its citizens and defines the structure of the Government. It provides the legal foundation for the existence of the republic as a sovereign, democratic state.
South Africa's constitutional history and development can be divided into three key phases: the period between 1909 and 1910, the period between 1910 and 1990, and the period from 1990 to the present. The first period covers the independence period and is the genesis of the country's constitutional development. The South Africa Act of 1909, passed by the British Parliament, established an independent Union of South Africa, comprising the territories of Cape Colony, Orange Free State, Natal, and Transvaal. This act only granted limited independence, as the British Crown remained the ceremonial head of state, represented by a Governor-General.
The second period, from 1910 to 1990, was marked by racial conflict and the institutionalisation of exclusionary politics under the system of apartheid. The National Party government enforced apartheid, an extreme form of legal segregation based on race, from 1948 to 1994. During this time, there were struggles for a just and democratic constitutional dispensation, with calls for a non-racial and democratic constitution representing all the people of South Africa.
The third period, from 1990 to the present, saw the end of apartheid and the introduction of reforms by the National Party government, leading to the establishment of a constitutional democracy headed by the first non-white president, Nelson Mandela, following his African National Congress's win in the first multiracial elections in April 1994. The current Constitution was drawn up by the Parliament elected in these 1994 general elections.
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Amendments to the constitution
South Africa's current constitution, 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, replacing the Interim Constitution of 1993. The first constitution was enacted by the South Africa Act in 1909, the longest-lasting to date.
Since 1997, the Constitution has been amended eighteen times. The process of amending the Constitution is outlined in Section 74 of the Constitution, which states that a bill to amend the Constitution requires the support of at least two-thirds of the members of the National Assembly (at least 267 out of 400 members). If the amendment concerns provincial powers or boundaries or changes the Bill of Rights, at least six out of the nine provinces in the National Council of Provinces must also vote in favour.
Amending Section 1 of the Constitution, which establishes South Africa as a sovereign, democratic state and outlines its founding values, requires a higher threshold of support, with three-quarters of the members of the National Assembly needing to vote in favour.
The Constitution First Amendment Act, signed by the President on 28 August 1997, came into effect retroactively on 4 February 1997. The Second Amendment Act, which came into force on 7 October 1998, included provisions to extend the term of office for municipal councils from four to five years, extend certain deadlines in the transition to the post-apartheid system of local government, and allow for the designation of alternates to replace members of the Judicial Service Commission.
The Third Amendment Act, which came into force on 30 October 1998, enabled municipalities to be established across provincial boundaries with the agreement of national and provincial governments. The Fourth and Fifth Amendment Acts, which came into force on 19 March 1999, clarified the timing of elections to provincial legislatures and the National Assembly and modified the formula for allocating delegates' seats in the National Council of Provinces.
More recently, there have been calls for an amendment to Section 25 of the Constitution to outline the conditions under which expropriation of land without compensation can occur. This proposed amendment has sparked debate, with some commentators arguing that it would require the support of 75% of the members of the National Assembly. However, this has been disputed, with the clarification that a 75% majority is only required if the amendment affects the founding values outlined in Section 1.
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The constitution's international acclaim
South Africa's Constitution is one of the most progressive in the world and enjoys international acclaim. The Constitution of the Republic of South Africa, 1996, was approved by the Constitutional Court on 4 December 1996 and came into effect on 4 February 1997. It is the country's fifth constitution and was promulgated by President Nelson Mandela, replacing the Interim Constitution of 1993. The Constitution provides the legal foundation for the republic, sets out the human rights and duties of its citizens, and defines the structure of the government. It is the supreme law of the land, and no other law or government action can supersede its provisions.
The Constitution's preamble states that it aims to heal the divisions of the past and establish a society based on democratic values, social justice, and fundamental human rights. It seeks to improve the quality of life of all citizens and lay the foundations for a democratic and open society in which the government is based on the will of the people, and every citizen is equally protected by law. The fundamental rights contained in Chapter 2 of the Constitution protect the rights and freedoms of individuals, with the Constitutional Court guarding these rights and determining whether state actions align with the Constitution.
The creation of this Constitution was an integral part of the negotiations to end apartheid in South Africa. The African National Congress (ANC) insisted that it should be drafted by a democratically elected constituent assembly, while the governing National Party (NP) feared that minority rights would not be protected and proposed a consensus-driven process followed by a referendum. Formal negotiations began in December 1991 at the Convention for a Democratic South Africa (CODESA), but broke down after the second plenary session in May 1992. South Africa's first non-racial elections were held in April 1994, and the ANC's overwhelming win resulted in the establishment of a constitutional democracy headed by the first non-white president, Nelson Mandela.
The Constitution has been amended eighteen times since 1996. The process of amendment requires at least two-thirds majority support in the National Assembly, with additional requirements for provincial support if certain types of amendments are proposed. The first amendment came into effect retroactively on 4 February 1997, the same date the Constitution came into force. The second amendment extended the term of office for municipal councils, addressed deadlines in the transition to the post-apartheid system, allowed for alternates in the Judicial Service Commission, empowered Parliament to assign additional functions to the Public Service Commission, and renamed the Human Rights Commission to the South African Human Rights Commission. The third amendment allowed for municipalities to be established across provincial boundaries with relevant government agreements. The fourth and fifth amendments, passed separately due to provincial government implications, clarified the timing of elections for provincial legislatures and the National Assembly, and modified the formula for allocating delegate seats in the National Council of Provinces.
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Frequently asked questions
The Constitution of South Africa is the supreme law of the land. 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 of South Africa is founded on the values of human dignity, the achievement of equality, and the advancement of human rights and freedoms. It also enshrines the principle of universal adult suffrage and guarantees regular elections and a multiparty system of democratic government.
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. The process of forming the Constitution was an important part of the negotiations to end apartheid in South Africa.
The Constitution of South Africa has undergone several amendments since it was first enacted. The first Constitution was passed in 1909, but it only granted limited independence to South Africa as the British Crown remained the ceremonial head of state. In 1960, a new constitution was adopted through a referendum that abolished the Union of South Africa and established a republic. The current Constitution, which came into effect in 1997, is the result of the country's transition to a constitutional democracy following the end of apartheid.
