Interim Constitution?—?a historic milestone

2014-04-22 00:00

TWENTY years ago, immediately after midnight of April 26, 1994, with the commencement of the new day of April 27, 1994, as a result of the historic political settlement that was reached between the participating parties in the multiparty negotiating process that had commenced with Codesa (Convention for a Democratic South Africa) in 1992, the Interim Constitution became operative.

Although Codesa unfortunately collapsed in June 1992, the political and constitutional negotiations continued in the following year with the multiparty negotiating process, resulting in a crucial political settlement which involved, inter alia, the adoption of an Interim Constitution and the setting of the date of April 27, 1994, for the first democratic election for South Africa.

This constituted the end of a protracted and tragic oligarchic epoch that involved institutionalised racism and the beginning of a new democratic non-racial one, with great prospects for political and social justice.

The Interim Constitution was the outcome of a comprehensive process of intense political negotiation and significant compromises by all the major parties that had to make substantial compromises. So for example, the ANC shifted its stance on regionalism, from initially desiring a strong unitary form of government to accepting a quasi-federal form with nine provinces.

The Interim Constitution was most certainly not technically or politically a perfect constitution.

Indeed, it encapsulated certain flaws, but it provided an important basis for future political and constitutional development. In this regard, the 34 constitutional principles, which were an integral part of the Interim Constitution, formed a significant part of the political settlement, since they were binding on the Constitutional Assembly, which was tasked with drafting the final Constitution.

The Interim Constitution established a fundamentally new political and constitutional dispensation for South Africa, premised on the supremacy of a rigid constitution and an enforceable bill of rights, involving judicial review and the testing right of the courts.

This was a radical departure from the discredited apartheid dispensation, based on a system of institutionalised racism, using the sovereignty of Parliament.

The new dispensation also involved the complex issue of dismantling the self-governing homelands and the nominally independent TBVC states, and their reincorporating into a unified South African state, with nine provinces, constituting a quasi-federal dispensation.

The Constitution encapsulated an entrenched bill of rights with fundamental rights and values, such as human dignity, equality and liberty, as well as the rule of law, non-sexism, non-racism, accountability and a multiparty political system, which were entrenched and formed the foundation on which a new and far more just body politic was to be developed.

As a democratic constitution should, the Interim Constitution incorporated the separation of powers, with the creation of a new apex court, the Constitutional Court, with power to invalidate any law in conflict with the supreme Constitution.

The bill of rights made provision for substantive equality and not merely formal equality, by including a provision for affirmative action, which was essential to redress the position of people disadvantaged by past discrimination.

The superb leadership qualities of both Nelson Mandela and F.W. de Klerk played an indispensable role in the forging of both the political settlement and the Interim Constitution. Both these exceptional men set aside personal differences for the good of the country and all its people.

Mandela displayed that he was a man of consummate vision, magnanimity and with a willingness to compromise. In his approach, he was both pragmatic and moral, thereby earning international and domestic esteem. From a national point of view he is par excellence, South Africa’s George Washington, a revolutionary turned president, who oversaw the birth of a great nation.

As the last white nationalist president, De Klerk also made a seminal contribution to the process of transformation that ushered in the Interim Constitution, as a courageous reformer of historic calibre, who in an exemplary manner, stepped aside to allow Mandela to take over the reins of government and enjoy the limelight.

Although the role of Chief Mangosuthu Buthelezi was controversial, in using a strategy of brinkmanship, he nevertheless also contributed, inter alia, to the federal nature of the Constitution.

The final Constitution of 1996 was to be based to a great extent on the principles, values and structures encapsulated in the Interim Constitution. After 20 years of democracy it is essential that we as a nation take stock. We have, indeed, come a long way, but still have a long way to go.

Our system of constitutional democracy is working and we have a robust political debate in the run-up to the fifth democratic election since 1994.

Although South Africa has been transformed from the undemocratic apartheid state into a vibrant and developing democracy, there is still widespread poverty with about 22 million people still living in poverty.

More than 3,3 million free houses have been built, benefiting more than 16 million people, but about seven million people still live in informal settlements. Unemployment is a major concern, requiring an extensive system of state grants that number nearly 16 million. Corruption, epitomised by the Nkandla scandal, and the unacceptably high incidence of crime, blight our society. All of these pose a challenge for the future.

It is of paramount importance that South Africans and their leaders, having crafted an exemplary Constitution, at inordinate cost, must defend and promote it against the predations of unscrupulous people in the new body politic who are corrupt and avaricious.

We need to seize the challenges that we are confronted with, and work unstintingly to ensure that all our people benefit from its content and values encapsulated in it.

In effect, we need policies of social rehabilitation and compassion, grounded in the Constitution, implemented by leaders of vision and integrity, who are indeed role models, like Mandela, in order to eliminate poverty and inequality in South Africa and bring about a moral and socially just society that is caring and compassionate.

We must live up to the ideals and legacy of Nelson Mandela.

• George Devenish is a senior research associate and professor emeritus at UKZN. He was one of the scholars who assisted in drafting the Interim Constitution.

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