The first democratically elected Parliament occupied the same buildings as the parliament of apartheid, but it became a very different institution, both in its outward manifestations and in its political and constitutional essence.

It was to be the heartbeat of a people-centred constitution; the maker of laws to enable a profound transformation of society; and a pre-eminent space for national debate. It drew Mandela’s respect as accountable head of state and government. Even though he was not a member, he kept watch on it and at times gave its development a nudge. In its chambers he engaged in the national debate with speeches that ranged from visionary and unifying mobilisation of the country to the sharp cut and thrust of partisan politics.

The expectations of Parliament grew from the nature of South Africa’s transition, negotiated rather than the consequence of military victory, a mix of aspiration and accommodation, in which Parliament had the indispensable role of creating a legislative framework for the fulfilment of the electorate’s mandate.

But if Parliament made the laws, it did so under the constraints of a sovereign Constitution. Scarred by a sovereign apartheid parliament that made oppressive laws at will, it had been agreed in negotiations that the Constitution should be the supreme law and that the ultimate arbiter in this regard should be the Constitutional Court, not Parliament. Even when Parliament sat as the Constitutional Assembly to draw the final constitution, its work had to be certified by the Constitutional Court.

Dynamics within the first Parliament were also affected by transitional arrangements. Co-operation of parties in the legislature depended, uneasily, on ‘the spirit of national unity’ alone rather than constitutional prescription. And while there were changes in the institution, Parliament, like government and the economy, was a terrain which the ANC entered without the technical experience of the opposition and the administrative staff.

What the 400 new members of parliament did have in common was the legitimacy of being democratically elected in South Africa’s first non-racial election open to every adult citizen. It replaced the segregated white, coloured and Indian chambers of apartheid with a single National Assembly representing all of South Africa. Proportional representation of parties meant that parliament mirrored the country’s diversity better than any constitutionally prescribed quotas or any constituency-based system would have delivered.

The question of the future electoral system had been intensely discussed in the ANC. Initially there was some interest in a constituency-based system.²⁸⁴But by early 1992 it had opted for proportional representation of parties with a combination of both national and provincial lists of candidates. Elections would be based on universal franchise with all votes having equal value. With that went the rejection of electoral systems incorporating racial or ethnic criteria. Further, after much debate, a high threshold to attaining parliamentary representation as is common in other such systems was also thrown out. There would be no threshold – to elect one member of the National Assembly a party would need enough votes for one of the 400 seats, namely 0,25% of the vote (or even less if it got a ‘remainder seat’ by having more votes than any other party after 399 seats had been allocated.)

One concern was that a constituency-based first-past-the-post-system would result in the ANC winning almost every constituency, leaving supporters of smaller parties unrepresented and working against the needs of the country’s delicate transition. Similarly, a high threshold would exclude smaller parties which nevertheless represent an important voice in society. That consideration applied with particular force to the election of the first Parliament since it would also sit as a Constitutional Assembly to write the final constitution. In any case, from a practical perspective, for the first election there was neither a voters roll nor demarcated constituencies across the whole country. (At the local level, it was proposed, proportional representation would be supplemented by other democratic electoral systems.²⁸⁵)

Mandela had strong feelings about the electoral system, and reservations about proportional representation. During the drawing of the final constitution, when there was a lot of public pressure on the ANC to change its position, he began to raise the possibility of changing to something like a first-past-the-post system. He felt there was a need for an approach that made MPs more accountable to a specific electorate. To debate these issues, Essop Pahad and Penuel Maduna went to see him. They had been part of the ANC team drafting that part of the interim constitution and were now drafting the final constitution.

Mandela returned to the issue when the time came to address Parliament as his term came to an end. He posed the question, ‘whether we need to re-examine our electoral system, so as to improve the nature of our relationship, as public representatives, with the voters.’

The first election therefore produced a National Assembly whose composition was proportional to the votes each party gained in the election. The Senate, which later, under the new constitution, became the National Council of Provinces, had 90 members, 10 each elected indirectly by the nine provinces, again in proportion to parties’ provincial support.

Nelson Mandela and the members who assembled in Parliament on 9 May 1994 to be sworn in as Members of Parliament provided one of the most visible and striking symbols of the democratic revolution. Their presence and mood gave new meaning to the parliamentary precinct which had housed the white and almost totally male apartheid parliament and its subordinate Indian and coloured chambers.

The challenge was not only to establish and build an institution which worked, but also one which exemplified the democratic aspirations of the liberation movement and which would both in its style and its output, advance the two inter-related tasks of nation-building and reconciliation, reconstruction and development.