The Presidential Years

The constitution was drawn in two stages – before and after the 1994 election – and Mandela was involved in both.

Early antecedents in the ANC’s approach were a bill of rights developed in 1923 and ‘African Claims’, derived in 1943 from the Atlantic Charter. In 1985 when the conditions for a negotiated transition to democracy were beginning to take shape Oliver Tambo established a Constitutional Committee whose work led to publication in 1989 of the ANC’s Constitutional Guidelines. They embodied the Freedom Charter’s political and constitutional vision of a free, democratic and non-racial South Africa. They were a statement of principles rather than a draft constitution, because at that time there were too many uncertainties about the nature of the coming transition, and more importantly, because the legitimacy of any constitution would depend on popular participation in its drafting.248

The South African constitution of that time had been introduced in 1983 in an attempt to dampen or divide resistance. It involved a ‘tricameral’ parliament, with separate chambers for white, coloured and Indian representatives, a system of ‘power-sharing’ that ensured white minority control. Africans were excluded, expected to exercise political rights in the bantustan and local urban councils.

Mounting resistance soon exposed the unsustainability of this scheme and proposals for further reform proliferated, from both the apartheid government and others, which included various devices, often inspired by theories of ‘consociationalism’ and ‘communalism’ allegedly suited to deeply divided societies, and which in one way or another diluted democratic majority rule and like the tricameral system would give effective veto powers to the white minority.

In response, the ANC’s guidelines explicitly rejected constitutional protection for ‘Group Rights’ which would perpetuate the status quo.249 The guidelines included: a unitary state and universal suffrage; a bill of rights guaranteeing the fundamental human rights of all citizens irrespective of race, colour, sex or creed; and constitutional obligations on the part of the state and all social institutions to eradicate race discrimination and to take active steps to eradicate, speedily, the economic and social inequalities produced by racial discrimination. They included promotion of conditions for the active involvement of all sectors of the population at all levels in government and in economic and cultural life.

When the ANC’s Constitutional Committee set about drafting a constitution and bill of rights during negotiations, it drew on its Constitutional Guidelines for a Democratic South Africa and took into account universally accepted democratic principles, particularly those in social democratic systems.250

While Mandela was not involved in the detail of constitutional negotiations, he kept watch over the process, ensuring that the broad direction was in line with the ANC’s goals. He was always there to break deadlocks that could have deflected negotiators from those goals. Two principles informed his engagement: one of process, that the negotiations should be inclusive and involve the greatest possible public participation; and one of substance, that the outcome should be a fully democratic constitution.

The two-stage process was agreed by the ANC and National Party in the Record of Understanding in September 1992 which opened the way to resume talks that had broken down after the massacre at Boipatong. In the first stage the Multiparty Negotiating Forum produced a set of 34 principles which were enacted as part of the interim constitution by the existing National Party government. It provided for the election of a parliament in terms of proportional representation of parties on the basis of universal suffrage, which would sit as a Constitutional Assembly to draw up a draft final constitution. The Constitutional Court established by the interim constitution would have to certify the new draft constitution’s conformity with the 34 principles before it could become law.

Inclusiveness took different forms in the different stages of negotiation. The interim constitution was negotiated by an equal number of delegates and advisors from each of the 26 parties and organisations which were part of the multi-party negotiations forum. During that stage parties could have influence beyond the scale of their support even if qualified in practice by the principle of ‘sufficient consensus’ which gave the two major parties (the NP and the ANC) the capacity in the last instance to decide matters. The final constitution on the other hand was drafted by democratically elected representatives of the citizenry, present in the Constitutional Assembly in proportion to the number of votes for their parties in the 1994 national election. In contrast to the first stage there was also direct public participation, including solicited submissions from citizens both in writing and in listening forums in villages, towns and communities.251

At the same time as encouraging inclusiveness and broad participation, Mandela insisted on democratic content.

There were certain things which he was very focused on.

One of them was majority rule. We would come up with this and that, proportional representation, nine provinces and then we came up this idea of a senate and national assembly and afterwards a council of provinces and national assembly and this and that. He would always ask the question, ‘How does this measure up to the need for majority rule? In which way does this dilute majority rule?’ He kept an eagle eye on that, he didn’t want anything that was going to dilute the will of the majority and result in the election of organs of power that were not in conformity with the will of the electorate. He was really, really, focused on that very much. He wouldn’t agree to anything that was going to do that. So the idea of some kind of minority protection, minority rights, special privileges, anything of that sort he was not going to agree to. He really kept the focus on that.

That was the one thing. He didn’t always worry about every little thing, he didn’t express too many views about everything, but on issues of principle, he kept focus.

The other thing was, he was clear in his mind that what we were trying to establish was a modern democracy which was modern in the sense that it would be one which is nonracial, nonsexist, secular and embodying all of the modern concepts and human rights.252

Valli Moosa

He was always there for the decisive moments, as much in the drafting of the final constitution as the interim one.

On the issues which our negotiators raised with me, like property rights, the right to strike, the lockout and those issues, they would come to me to say, look, we are having problems about this thing and then indeed Madiba would come into those discussions.253

Thabo Mbeki

Mandela made fewer interventions during the drafting of the final constitution than in the earlier stage (see Chapter 3), but they were decisive. They were fewer because much had been settled during the interim phase and because the process in the Constitutional Assembly was intensive and thorough. It involved the whole of parliament – 400 members of the National Assembly and 90 members of the National Council of Provinces. It was steered by Cyril Ramaphosa as chair of the Constitutional Assembly and Leon Wessels of the National Party as his deputy. Drafting was done by technical committees and Parliament’s Constitutional Committee.

It was only when this intensive process failed to resolve issues that the most senior leadership would have to intervene.

There were similar moments in negotiating the final constitution particularly when it was quite clear that De Klerk was getting cold feet to finally agree to the provisions of the final constitution. Madiba would take him on and he was very good at moments like that and we knew that each moment of deadlock we relied on Madiba to unlock it. We would push up all the difficult issues to him to hammer them home and to get our position won and confirmed. Madiba was a resourceful leader in that regard. And he was knowledgeable, knowledgeable even about the intricate things that we were negotiating in the constitution, deeply, deeply knowledgeable and he kept himself abreast with developments and he wanted to be briefed on a continuous basis. …

The provision for the Government of National Unit to come to an end was one such issue. The other side thought that it would be good to continue with it but he said, ‘No, we’ve allowed this to happen for this period but as we envisaged it, it would come to an end and then there would be a fully blown majority type of decision-making.’254

Cyril Ramaphosa

There was, however, a shadow that hung over the writing of the new constitution. From beginning to end, the IFP refused to participate, and employed various tactics to achieve its demands regarding the status of the Zulu King and provincial autonomy. To pre-empt matters it had the provincial legislature adopt a KwaZulu-Natal constitution before the South African Constitution had been drafted. (The move failed when the Constitutional Court struck down the provincial constitution as fatally flawed because it usurped national powers.255) Rather than participate in the Constitutional Assembly on the same basis as other parties, the IFP demanded the international mediation which had been agreed as a condition of its participating in the 1994 election. In pursuit of this, its MPs staged a walk-out from Parliament during the debate on Mandela’s 1995 State of the Nation Address, only to return after twelve days, just before the fifteen days that would have led to their suspension. They then withdrew from the Constitutional Assembly for the whole of the drafting of the constitution. Mobilisation of supporters behind the demand for autonomy and in resistance to national policy to reform traditional leadership fostered a climate of violence in the KwaZulu-Natal province and some other areas.

For Mandela, the IFP’s approach was an attempt ‘to assert a status in the constitution-making process which is far above the support they got in the elections for the Constitutional Assembly’.256 When the IFP staged its parliamentary walk-out, he challenged them in Parliament to return.

We strongly disapprove of this action. Because it is here in these chambers where the blast furnace of policy formulation is located. It is here, that ideas should be pitted against one another and differences ironed out...

We disapprove of this behaviour from the point of view also of the interests of the country as a whole; it does not reinforce confidence on the part of our people and the international community in the capacity of leaders to use democratic institutions to resolve differences. But our concern goes particularly to those who voted the IFP into these institutions.

In this context I wish to address them directly:

You elected these IFP representatives into parliament to articulate your interests and pursue what you hold dear to your hearts. You did so also because you were convinced that they are not cowards who would exit from these hallowed chambers at the slightest hint of a problem. You had confidence that they would stand their ground in the National Assembly and the Senate and, within the rules, assert your point of view.

None of the problems they have raised will be resolved by means of walk-outs. It is your responsibility to call them to order. In the tradition of Shaka, Makhanda, Cetshwayo, Moshoeshoe, Ramabulana, Sekhukhune and Nghunghunyana, send them back to come and slog it out here in parliament and not to run away!

Let me once more reiterate the principles which guide the ANC's approach to the issue of international mediation, which has been raised, ostensibly, as the reason for this irrational behaviour.

Firstly, the ANC has stated over and over again that it is committed to the agreement which was reached on 19 April 1994. It is precisely for this reason that a sub-committee was formed to look into the matter.

Secondly, sheer logic tells us that, to invite any eminent persons to undertake this task, requires that there should be clear terms of reference. This is precisely what the tri-partite sub-committee was discussing.

Thirdly, we are examining any steps that might be needed to deal with the issue. On the part of the ANC, we will delegate Deputy-President Mbeki to take this matter up as soon as he returns from his trip abroad. In the mean-time, I will this afternoon meet Chief Buthelezi at Genadendal in order to explore possible solutions to this problem.

Fourthly, the ANC - and I believe other rational parties - would not want to be party to an approach that seeks to treat a matter pertaining to the King and Kingdom of KwaZulu-Natal as if the King did not exist. Neither would we accept attempts to arrogate to any political party the right to speak on behalf of any King or Kingdom.

Let me however make one issue very clear. While we do recognise the right of people to undertake any action within the limits of the law; while we are committed to political solutions to this problem; we cannot and must not, as a nation and as a government, allow threats and the actual perpetration of violence to go unchallenged.

We are confident that South Africans of all political persuasions, including the media, will support the right of government to carry out its obligations to the nation as prescribed in the constitution; that they shall not approach this matter in a manner that encourages irresponsibility, lawlessness and blackmail.257

Mandela met with Buthelezi on two, unsuccessful, occasions to persuade the IFP to return to the Constitutional Assembly.258 The second time, after the Constitutional Court had ruled that provincial powers had to be strengthened, there were also talks between the ANC and IFP and a brief return followed by a final withdrawal. In the end, there was no international mediation. The ANC took the view that the commitment to such mediation had applied to the period of the interim constitution and had been overtaken by the existence of the elected Constitutional Assembly. And the King himself, now at odds with Buthelezi, was no longer interested.

Unlike the IFP, the National Party pursued its objectives through the agreed process. It held out right to the end on a number of issues. Mandela played a critical role in unlocking deadlocks in favour of ANC positions.259 In the same way that Mandela and De Klerk had met in the final days of the pre-election negotiations to resolve the last sticking points, they met again over outstanding deadlocks a few days before the deadline for completing the draft of the new constitution. Before, they had met late at night in President De Klerk’s office in the Union Buildings; now there was a day of meetings at President Mandela’s official residence in Pretoria attended also at various times by delegations from the National Party, business leaders and COSATU.. Before, the big issues were decision-making in the executive and amnesty. This time, the ANC, had already drawn the line on decision-making: the interim arrangement would end in 1999. The last deadlocks included language in education; employers’ right to lockout; the property clause; and powers of provinces. Apart from the property clause, resolved even closer to the deadline, agreements in principle were reached during these meetings. Some issues, were left to the Constitutional Court’s certification process.260

It was not only in pushing for ANC positions that Mandela showed his leadership. He was also ready to change his own mind when his organisation differed with him, if persuaded. One such issue was the number of provinces – he would have preferred four provinces rather than the nine based on the economic regions defined by the Development Bank, which with some small modifications, the ANC agreed to.

Finally the negotiations, deadlocks and interventions came to an end when the two years that had been allowed for drafting the new constitution ran out. On 9 May 1996, the Constitutional Assembly adopted the draft finalised in the early hours of the morning by Parliament’s Constitutional Committee. Mandela welcomed it in an address that touched on both substance and process.

The brief seconds when the majority of Honourable Members quietly assented to the new basic law of the land have captured, in a fleeting moment, the centuries of history that the South African people have endured in search of a better future.

As one, you the representatives of the overwhelming majority of South Africans, have given voice to the yearning of millions.

And so it has come to pass, that South Africa today undergoes her rebirth, cleansed of a horrible past, matured from a tentative beginning, and reaching out to the future with confidence.

The nation teetered on a knife edge over the past few days, with reports of intractable deadlocks and an abyss in waiting. This was to be expected, given the difficult issues we were dealing with; and given the tight negotiating deadlines. But aren't South Africans a wonderful people, to whom the words ‘deadlock’ and ‘miracle’ have come to nestle in comfortable proximity; and alternately, to grip the national imagination like the plague!

Be that as it may, we dare not, in the midst of the excitement of last-minute solutions, forget the magnitude of the achievement we celebrate today. For, beyond these issues, lies a fundamental sea-change in South Africa's body politic that this historic moment symbolises.

Long before the gruelling sessions of the final moments, it had been agreed that once and for all, South Africa will have a democratic constitution based on that universal principle of democratic majority rule. Today, we formalise this consensus. As such, our nation takes the historic step beyond the transitory arrangements which obliged its representatives, by dint of law, to work together across the racial and political divide.

Now it is universally acknowledged that unity and reconciliation are written in the hearts of millions of South Africans. They are an indelible principle of our founding pledge. They are the glowing fire of our new patriotism. They shall remain the condition for reconstruction and development, in as much as reconstruction and development will depend on unity and reconciliation.

He applauded public participation in the making of the constitution.

In the final analysis, the praise that we are apt to heap upon ourselves appears misplaced, against the backdrop of the active participation of the people in the drafting of the new constitution.

The determination of this Assembly to ensure that the people play their rightful role, and the meticulous planning and execution that this entailed, broke new ground in ways of engaging society in the process of legislation.

Reaching out through the media; opening the process to inputs from across society; and going out across the length and breadth of the country for face-to-face interactions with communities; the Constitutional Assembly reinvigorated civil society in a manner that no other process in recent times has done.

Present today in the public gallery are representatives of almost every organised sector of civil society which made their inputs into the process: the legal fraternity, women, local communities, traditional structures, and leaders of sectors dealing with business, labour, land issues, the media, arts and culture, youth, the disabled, children's rights and many more.

Beyond those present are the millions who wrote letters and who took part in public forums: from the policeman in a charge office in the furthest corner of the Northern Province, to prisoners getting together to discuss clauses, and to residents of Peddie in the Eastern Cape who continued with their meeting in pouring rain to debate the role of traditional leaders...

To all of them, we say, thank you for taking your destiny into your own hands. And we congratulate the Chairperson of the Assembly, the Deputy Chairperson, the Management Committee in which all the parties were represented, and the staff, for their dedication and drive to ensure that we attain this historic moment.

Among us are representatives of the international community who have honoured us by sharing in this, our moment of joy. Yet the boundaries that might separate our countries cannot subtract from your own labours in ensuring that South Africa achieves her freedom, and that we emerge with a constitution of which, we hope, humanity shall be proud. Directly and indirectly, your contributions and your force of example, provided the fountain from which we drank with relish.

This constitution is our own humble contribution to democracy and the culture of human rights world-wide; and it is our pledge to humanity that nothing will steer us from this cause.

Ultimately, the lodestar governing our movement into the future is the unstoppable force of democracy. You have accomplished what you have, to the extent that you represented the aspirations of the people and the abiding values of our nation.

He concluded by recalling – in words he added to the publicly distributed speech – the approach that had guided the negotiations that culminated in democratic elections and the draft of the new constitution.

May I add that one principle influenced our approach in the negotiations that started at Kempton Park, and in the negotiations involving this constitution. In adopting this Constitution, we discussed our strategy very carefully, and the principle that we established was that there should be neither winners nor losers. South Africa as a whole must be the winner.

This is a principle which we have observed over the past two years in the Government of National Unity. The majority party must not abuse its power and reduce other political parties in the Government to the status of being mere rubber stamps, having merely to yield to the decisions of the majority. We have advanced in the task of building national unity, because we have conscientiously stuck to and observed these two principles.

But everybody will understand that we have a commitment and a mandate from the overwhelming majority of our people in this country to transform South Africa from an apartheid state to a non-racial state, to address the question of joblessness and homelessness, to build all the facilities that have been enjoyed for centuries by a tiny minority.

We have that commitment and we are determined to ensure that all the people of South Africa live a dignified life in which there is no poverty, no illiteracy, no ignorance and no disease. That is our commitment.

We are determined to honour that pledge, and anybody who tries to block us from attaining that objective of carrying out our mandate is like a voice crying out in the wilderness. We are going to use that mandate in order to better the lives of all the people of South Africa. . .

Having said that, I want to repeat what I said before. We are dealing with a situation in which if one talks to Whites, they think that only Whites exist in this country, and they look at problems from the point of view of Whites. They forget about Blacks, namely Coloured, Africans and Indians. That is one side of the problem. However, we have another problem. When one talks to Africans, Coloured and Indians, they make exactly the same mistake. They think that the Whites in this country do not exist. They think that we have brought about this transformation by defeating the White minority and that we are dealing with a community that is now lying prostrate on the ground, begging for mercy, to whom we can dictate. Both tendencies are wrong. We want men and women who are committed to our mandate, but who can rise above their ethnic groups and think in terms of South Africa as a whole.

We have now adopted this constitution, and its significance has been dealt with by almost all the speakers here. However, there are still concerns on the part of the minorities in this country. The fact that we have adopted this constitution does not mean that we are not going to address those concerns. We will continue searching for solutions because we want everybody to feel that he or she is part and parcel of our efforts to resolve the problem of South Africa. That is the position, and the adoption of this constitution is the beginning of our efforts to resolve the problems of this country.

Every day when I go to bed, I go there feeling strong and hopeful, because I can see the rainbow nation rising. I can see men and women who are beginning to break loose from the shackles of political indoctrination and are thinking clearly about the problems of our country. Those political parties which still think in terms of the past are lagging far behind the thinking of their own constituencies, and that is a real danger.

I would like everybody, Black and While, to think in terms of the country as a whole. That is the demand of the moment. I say every day I go to bed feeling strong and hopeful because I can see new leaders of thought emerging, leaders who are the hope of the future.261

There were two more steps before the Constitutional Assembly’s work became the country’s constitution. The Constitutional Court had to certify it; and the President had to sign it.

Measuring the draft constitution against the 34 principles in the interim constitution, the Constitutional Court in September 1996 found it wanting in a few respects, in particular in giving provinces less power than they had under the constitutional principles. The Court concluded, however, that the draft ‘complies with the overwhelming majority of the requirements of the Constitutional Principles,’ and that the instances of non-compliance should be easily dealt with.262

When Parliament had made the necessary amendments, the president gave it legal force at a public signing ceremony at Sharpeville on 10 December 1996, the venue chosen to symbolise the restoration of rights and dignity at the scene of the 1960 massacre of people protesting against apartheid’s pass laws.