Jonah Patel
South Africa's constitution-making process has been a long and complex journey, reflecting the country's struggle for freedom and democracy. The country's constitutional history can be divided into three key phases, each shaped by the prevailing political and social dynamics. The first phase, from 1909 to 1910, saw the enactment of the South Africa Act by the British Parliament, establishing an independent Union of South Africa but entrenching white dominance and disenfranchising black citizens. The second phase, from 1910 to 1990, was marked by continued racial conflict and the institutionalization of apartheid, a system of legal segregation. The third phase, from 1990 onwards, witnessed the end of apartheid and the establishment of a constitutional democracy, with the constitution becoming a critical tool for promoting equality, human rights, and social justice in a nation seeking to heal its past divisions.
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What You'll Learn
The end of apartheid and the first democratic election
Apartheid, which translates to "apartness" in Afrikaans, was a system of institutionalised racial segregation and discrimination enforced by the South African government. Beginning in 1948, this policy aimed to maintain white supremacy and control over the country's political and economic systems by systematically marginalising non-whites.
The end of apartheid in South Africa was marked by the country's first multiracial elections in 1994, which culminated in the election of Nelson Mandela as the country's first Black president. This historic moment symbolised the triumph of justice, equality, and reconciliation after decades of struggle, resistance, and sacrifice.
The road to the end of apartheid and the first democratic election was long and tumultuous. Following Mandela's release from prison in 1990, negotiations between the African National Congress (ANC) and the apartheid government aimed to dismantle the apartheid system. This period was characterised by optimism for a new democratic future, but also by violence and resistance from hardliners on both sides.
In 1992, the Inkatha Freedom Party (IFP) formed the Concerned South Africans Group (COSAG) alongside pro-apartheid groups, protesting their alleged sidelining during the negotiation process. In 1993, an interim constitution was endorsed, under which non-racial elections were scheduled for April 1994.
The elections, held between 26 and 29 April 1994, were the first in which citizens of all races were allowed to participate, marking the culmination of a four-year process that ended apartheid. The ANC won a sweeping victory, reflecting the populace's overwhelming desire for change.
The new Constitution of the Republic of South Africa, approved by the Constitutional Court in 1996, took effect on 4 February 1997. It is one of the most progressive in the world, with a strong focus on human rights, democracy, social justice, and equality. The constitution consists of a preamble, fourteen chapters, and eight schedules, each dealing with specific topics.
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The Bill of Rights
South Africa's Constitution is considered one of the most progressive in the world, with its Bill of Rights being a cornerstone of democracy in the country. The Bill of Rights, now in Chapter Two of the Constitution, was largely written by Kader Asmal and Albie Sachs. It seeks to protect the rights and freedoms of individuals, and the state must respect, protect, promote and fulfil these rights.
The rights in the Bill of Rights include the right to privacy, freedom of expression, assembly, association, demonstration, and petition. It also includes the right to freedom of opinion, belief, and religion, as well as the right to use the language and participate in the cultural life of one's choice. The Bill of Rights also guarantees equality before the law, with the state not being allowed to unfairly discriminate against anyone based on race, gender, sex, pregnancy, or marital status, among other grounds.
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The Constitutional Court
South Africa's transition from apartheid to democracy in the 1990s was a period of profound constitutional change. The country's new constitution, approved by the Constitutional Court in 1996, is widely regarded as one of the most progressive in the world. It enshrines human rights, democracy, equality, and freedom, marking a significant departure from the country's history of racial conflict and exclusionary politics.
The Court's design reflects its democratic ideals. The judges sit at eye level with legal practitioners, while the public sits in an amphitheatre-like gallery, often higher than the judges, symbolising the judges' duty to serve the nation. The glass windows at head height for those inside the court remind judges to act in the interests of the people, rather than their self-interest. The court building incorporates bricks from the former prison on the site, serving as a reminder of South Africa's history and the struggle for democracy.
The Court's function is to determine the meaning of the Constitution in relation to matters in dispute. It does not decide on guilt or damages, leaving those matters to ordinary courts. However, it plays a crucial role in shaping South Africa's democracy, with landmark judgments such as abolishing the death penalty and ensuring police duty to prevent sexual violence.
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The promotion of human rights and equality
South Africa's constitutional history has been divided into three key phases: 1909-1910, 1910-1990, and 1990 onwards. The country's constitution-making process became important due to the need to address the racial conflict and exclusionary politics that had characterised its post-colonial history. The apartheid system, enforced by the Nationalist Party government from 1948 to 1994, institutionalised racial segregation and white minority rule.
The constitution's Bill of Rights, found in Chapter 2, is described as a cornerstone of democracy in South Africa. It enshrines the rights of all people, regardless of citizenship, and affirms the values of human dignity, equality, and freedom. The state is obligated to respect, protect, promote, and fulfil these rights. The Bill of Rights applies to all laws and binds all organs of the state, including the legislature, the executive, and the judiciary.
The constitution specifically addresses the need to promote equality and eliminate unfair discrimination. It allows for legislative measures to protect and advance disadvantaged individuals or groups. The state is prohibited from unfairly discriminating against anyone based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, or birth.
South Africa's constitution also guarantees universal adult suffrage, regular elections, and a multi-party democratic system, ensuring that the government is based on the will of the people and that every citizen is equally protected by the law. The Constitutional Court plays a crucial role in guarding these rights and ensuring that state actions align with the constitution's provisions.
South Africa's constitution-making process has been a significant step towards promoting human rights and equality, addressing the country's history of racial conflict and segregation. The constitution's strong emphasis on these values has helped establish a society based on democratic values, social justice, and the fundamental rights of all citizens.
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The establishment of a democratic government
South Africa's transition to a democratic government was a lengthy and tumultuous process. The country's constitutional history can be divided into three key phases, each marked by significant developments that shaped the nation's path toward democracy.
The first phase spans from 1909 to 1910 and covers the independence period, marking the genesis of South Africa's constitutional development. During this time, the South Africa Act was enacted by the British Parliament, establishing an independent Union of South Africa. However, this independence was limited, as the British Crown retained a ceremonial role, and certain Acts of the British Parliament continued to apply in South Africa.
The second phase, from 1910 to 1990, witnessed the institutionalisation of exclusionary politics under the apartheid system, enforcing racial segregation and white minority rule. Despite resistance and international pressure, this period was characterised by the disenfranchisement of non-whites and the consolidation of discriminatory policies.
The third phase begins in 1990 and extends to the present. This period is defined by the end of apartheid and the establishment of a democratic government. In the early 1990s, negotiations and reforms laid the groundwork for democratic transformation. The National Party (NP) accepted the African National Congress's (ANC) demand for an interim government and agreed that the new South Africa should be non-racial, non-sexist, and democratic.
In 1994, South Africa held its first democratic elections, marking a pivotal moment in the country's history. The ANC's overwhelming victory led to the election of Nelson Mandela as the country's first non-white president. This election represented a significant shift toward democratic governance and the realisation of constitutional ideals.
The new Parliament, elected in 1994, embarked on drafting a constitution that would embody the values of democracy, social justice, and fundamental human rights. This process was inclusive, inviting contributions from all South Africans. The resulting constitution, approved by the Constitutional Court in 1996, took effect in 1997 and became the supreme law of the land. It outlined the rights and responsibilities of citizens, promoted equality and human dignity, and established the structure of the South African government.
The South African Constitution is recognised as one of the most progressive in the world, with its strong emphasis on human rights, equality, and democracy. Amendments have been made over the years to further strengthen and clarify various aspects of the constitution, ensuring that it remains a living document that adapts to the evolving needs of the nation.
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Frequently asked questions
Constitution-making became important in South Africa as a way to establish a democratic government and uphold the rights of all citizens, following years of racial conflict and exclusionary politics under the system of apartheid.
The South African Constitution was guided by principles such as multi-party democracy, universal adult suffrage, the supremacy of the constitution, a quasi-federal system, non-racism, non-sexism, protection of fundamental rights, freedoms, and civil liberties, equality before the law, and the protection of linguistic and cultural diversity.
International pressure played a significant role in ending white minority rule and creating the conditions for constitutional reform. The Organisation of African Unity and the United Nations adopted the Harare Declaration, which set the basis for South Africa's transition to democracy and called for an elected body to draft the country's new constitution.
