Negotiating Beyond Deadlock: From the Constitutional Assembly to the Court

By the time he was appointed Chair of the Constitutional Assembly in 1994, Ramaphosa, then just 41, was an experienced negotiator. In the 1980s, initially as legal adviser to the Council of Unions of South Africa, he played a critical role in establishing and then running the National Union of Mineworkers. As head of the ANC's negotiating team, he was centrally involved in the negotiations that led to the 1994 elections. For a brief biography seewww.anc.org.za/people/ramaphosa_c.html.

See, for descriptions of this process, FriedmanSteven ed. The Long Journey: South Africa's quest for a negotiated settlement. Ravan Press, Johannesburg, 1993; WaldmeirPatti, Anatomy of a Miracle: The End of Apartheid and the Birth of the New South Africa. WW Norton and Co, New York, 1997; FriedmanSteven and AtkinsonDoreen, eds. South African Review 7: The Small Miracle South Africa's Negotiated Settlement. Ravan Press, Johannesburg, 1994; and CorderHugh, “Towards a South African Constitution,” Modern Law Review57 (1994): 491.

The Namibian independence process with which many South Africans were familiar had also used constitutional principles to guide (and constrain) its Constitution-making process. United Nations Security Council Resolution 435, adopted by the Security Council at its 2087^th meeting in September 1978, required a Constitutional Assembly to be elected which was to draft a Constitution in accordance with eight principles listed in the resolution. The Constitution was to be adopted by a two-thirds majority of the Namibian Assembly. See for a full discussion Lionel Cliffe et. al., The Transition to Independence in Namibia. Boulder, Lynne Reinner Publishers, 1994.

Constitution of the Republic of South Africa Act 200 of 1993.

The Constitutional Principles were included in the Interim Constitution as Schedule 4.

Principle XIII.

Principle V.

Ambiguity in an agreement is, of course, not uncommon. It reoccurs in the Final Constitution in a number of places where agreement was hard to reach. For an interesting discussion of the uses of ambiguity in agreements and the response of mediators seeHoneymanChristopher “In Defense of Ambiguity” Negotiation Journal (1987): 81.

Principle XIII (2) added by section 2 of Act 3 of 1994.

Ebrahim Hassen The Soul of a Nation – Constitution-making in South Africa (Cape Town, Oxford University Press, 1998) p. 246 and see “South Africa: Making the Constitution,” The Economist London January 13, 1996.

See supra fn. 10, Ebrahim at 246 fn 16. The web site is www.constitution.org.za.

Constitutional Talk 22 April – 18 May 1996, No. 3 reporting on the results of an independent survey by the Community Agency for Social Enquiry (CASE).

See supra fn. 10 at 358 fn. 19.

See supra fn. 10 at 242-9. Ebrahim states that over 1.7 million submissions were made in the first part of the process. Although most of these were petitions, over 11 000 were substantive. The Constitutional Assembly called for submissions once again when over 5 million copies of the “Refined Working Draft” of the Constitution were distributed in November 1995. On this occasion the Assembly received over 250 000 submissions. Again, many of these were in the form of petitions but many were not and, because these submissions were made in response to a draft text, many were more specific than those that had been received in the first part of the process.

See supra fn. 10 at 244. “Between February and August 1995, twenty six public meetings were organised … and more than 200 members of the Constitutional Assembly became involved in them. It was calculated that 20 549 people attended workshops and 717 organisations participated.”

See the Constitutional Assembly data base at http://www.constitution.org.za.

Submission dated May 16, 1995; Constitutional Assembly database at http://www.constitution.org.za.

See Constitutional Assembly data base at http://www.constitution.org.za. See also, GreenPippa “Moments that made the Constitution,” Mail and Guardian December 13, 1996 (http://web.sn.apc.org/wmail/issues/961213/NEWS62.html).

Criticism was registered in a number of articles in the press but see also GloppenSiriSouth Africa: The Battle over the Constitution. Dartmouth, Aldershot, 1997, 259 ff.

The six theme committees were established to divide up the work of the Assembly and thus make it more manageable. They intended together to cover all the issues that the Assembly had to deal with. The “themes” were the character of the democratic state, the structure of government, the relationship between the levels of government, fundamental rights, the judiciary and legal systems, and specialized structures of government (including the security services and the land commission). Only the theme committee concerned with fundamental rights remained active throughout the Constitutional Assembly process.

See also supra fn. 10 at 254. Hassen Ebrahim's comment on tea breaks during the 1992 negotiations leading to the Record of Understanding.

See the minutes of the 38^th meeting of the Constitutional Committee, Thursday 18 and Friday 19 April and “Gehieme gesprek lei tot deurbraak,” Die Beeld April 20, 1996, which refers to the three weeks of negotiation which preceded this decision.

The core membership of the “Technical Refinement Team” was Gerrit Grove, Phil Knight, Christina Murray and Johan van der Westhuizen. It was chaired by the deputy chair of the Constitutional Assembly's administration, Louisa Zondo. Hassen Ebrahim, the executive director of the Assembly, participated in many of its meetings and a number of other people participated at various times.

Section 47(1).

The “refined” text given here is not that in the Final Constitution. The approach to the dissolution of Parliament and votes of no confidence changed later in the process and the provisions, now sections 50 and 102 read as follows:

(1) The President must dissolve the National Assembly if -

(1) If the National Assembly, by a vote supported by the majority of its members, passes a motion of no-confidence in the Cabinet excluding the President, the President must reconstitute the Cabinet.

Section 9 is the equality provision. It states:

(1) Everyone has the right to freedom and security of the person, which includes the right -

Section 47(3).

See, for example, Republic of South Africa Constitution Act 110 of 1983 section 41(e) and Republic of South Africa Constitution Act 1993 section 42(e).

See (Draft) Minutes of the Thirty Second Meeting of the Constitutional Committee (9 and 10 November 1995) para 5.4.1(ii); http://www.constitution.org.za/cghbin/vdkw_cgi/xb4f1f8a-6.

Interim Constitution sections 72 and 73.

There was, however, a point in the process when a colleague of mine on the Panel said that he thought we had created a deadlock. One of the more tricky provisions to draft was that relating to amnesty for past actions by both the apartheid government and liberation movements. We suggested that an early version of the provision which reflected an agreement that had not been easily achieved was problematic, thus opening up the entire debate again. In fact, the provision finally settled on and adopted in the May 1996 version of the Constitution was rejected by the Constitutional Court. The matter is now dealt with in Schedule 6 item 22 of the Constitution.

Interim Constitution section 73(6).

See, for a contrary view, GloppenSiriSouth Africa: The Battle over the Constitution p. 209.

As it was, almost country-wide local government elections which were held in November 1995 had absorbed the attention of politicians and hampered the programme of the Constitutional Assembly.

The two members of the African Christian Democratic party voted against the new Constitution because it failed to subject all government and law to the law of God. The Freedom Front abstained. In addition, the Inkatha Freedom Party remained outside the process and did not vote.

The Democratic Party stated in its speech in Parliament on adoption day that although it would vote for the Constitution it intended to contest certain elements before the Constitutional Court (http://www.constitution.org.za/const3.htm).

Since black trade unions had been legalised in 1979.

“COSATU strikes a blow,” Mail and Guardian April 26, 1996http://web.sn.apc.org/wmail/issues/960426/BUS44.html. See also, “COSATU to go higher over right to strike,” The Independent Online May 12, 1996.

See Ebrahim , The Soul of a Nation pp. 205–11. See also Constitutional Assembly Minutes of the Forty Second Meeting of the Constitutional Committee May 1/ May 2, 1996; http://www.constitution.org.za, “High drama in constitutional danger zone,” Mail and Guardian May 1, 1996; http://web.sn.apc.org/wmail/issues/960501/NEWS58.html and “South Africa's race to find a permanent constitution,” The Economist May 4, 1996.

Minutes of Constitutional Committee Meeting of Tuesday 7 May 1996.

For a description of this meeting seeEbrahim, Soul of a Nation p. 216. The provision, section 241 of the draft Constitution, was headed “Labour Relations Act, 1995.” It stated:

Of course, it is too simplistic to assume that the ability of parties to shift matters to the Court was the only reason for various compromises in the Constitution. From the governing ANC's point of view at least, the fact that constitutional amendment provisions and the ANC's large share of the vote make amendment relatively easy at present may have meant that compromises were not necessarily forever. The National Party, on the other hand, had clearly won in the 1993 round – the Constitutional Principles encapsulated many of its most important positions.

In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC).

A side effect of the Constitutional Court's role in the certification process was that the Court gained credibility in the white legal community. When the Court was first established, the overall attitude of the white press and white lawyers seemed to be that it was biased towards the ANC. People believed that it would simply rubber-stamp ANC decisions. The willingness of the Court to take the Constitutional Principles seriously pointed in the opposite direction. While the Court (like all Constitutional courts) has not been free from allegations of being executive-minded, the certification judgment reassured many people.

The aspect of the Court's decision that caused most resentment was that on local government. The Constitutional Principles described the way in which the new Constitution should deal with local government in some detail. There was little doubt that the first draft of the Constitution had relied on a liberal interpretation of this requirement and so the Court's decision that Constitution did not comply with the Principles was not totally unexpected. But, the Assembly was not really ready to provide the detail in the Constitution that the Court said it needed. Policy concerning the future of local government was unsettled, and the government was in the middle of a long and thorough process of consultation. The difficulties that had been encountered in the drafting the local government provisions in the first round were not so much related to political disagreement between parties as to a lack of decision on what was desirable. The first draft had accordingly tried to leave leeway for future developments. The second draft had to be more concrete and, because the Assembly did not want to risk another non-certification, it needed to provide a great deal of detail.

Certification of the Amended Text of the Constitution of the Republic of South Africa 1996 CCT 37/96 (4 December 1996).

See supra fn. 10, pp. 249–50. You and the Constitution was written by Greg Moran and produced by the Constitutional Assembly in 1996.