Constitutional Principles for a Democratic South Africa
1 April 1991
The African National Congress envisages a united, democratic, non-racial and non-sexist South Africa, a unitary State where a Bill of Rights guarantees fundamental rights and freedoms for all on an equal basis, where our people live in an open and tolerant society, where the organs of government are representative, competent and fair in their functioning, and where opportunities are progressively and rapidly expanded to ensure that all may live under conditions of dignity and equality.
A UNITED SOUTH AFRICA
When we speak of a united South Africa, we have in mind in the first place the territorial unity and constitutional integrity of our country. South Africa must be seen, as rec ognised by the international community, as a single, non-fragmented entity including Transkei, Bophuthatswana, Venda and Ciskei.
Secondly, we envisage a single citizenship, nation and a common loyalty. We speak many languages, have different origins and varied beliefs, but we are all South Africans.
Thirdly, all apartheid structures must be dismantled and replaced by institutions of government – central, regional and local -which are truly non-racial and democratic. They must form an integrated and coherent whole, be drawn from all the people and be account able to the whole community.
Fourthly, there must be a single system of fundamental rights guaranteed on an equal basis for all through the length and breadth of the country. Every South African, irrespective of race, colour, language, gender, status, sexual orientation or creed should know that his or her basic rights and freedoms are guaranteed by the Constitution and enforceable by recourse to law.
Fifthly, the flag, names, public holidays and symbols of our country should encourage a sense of shared South Africanness.
A unified South Africa requires a strong and effective Parliament capable of dealing with the great tasks of reconstruction, of over coming the legacy of apartheid and of nation building.
We believe that there is a need for strong and effective central government to handle national tasks, strong and effective regional government to deal with the tasks of the region, and strong and effective local government to ensure active local involvement in handling local issues.
All such governmental structures and institutions shall be based on democratic principles, popular participation, accountability and accessibility. A unified South Africa shall not be an over-centralised, impersonal and over-bureaucratised country. The precise relationship between central, regional and local governments can be worked out on the basis of acknowledging the overall integrity of South Africa and the existence of fundamental rights for all citizens throughout the land.
The regions should not be devised as a means of perpetuating privilege, ethnic or racial divisions along territorial zones but should be based upon the distribution of population, availability of economic resources, communications and urban/rural balance.
National tasks would include external links and representation, defence and ensuring the basic security of the country, general economic, fiscal and tax policy, the creation of national policy framework and the furnishing of resources for eradicating racism and racial practices and for the tackling of the vast problems of education, health, housing, nutrition, employment and social welfare.
Regional tasks would include development and the carrying out of the basic tasks of the government at a regional level, bearing in mind regional particularities and resources.
Without detracting from basic constitutional rights and freedoms, provision could be made for special recognition of languages in the different regions.
Local tasks cover all the day-to-day aspects of living which most directly and intimately affect the citizen in an integrated and non-racial local authority area. The active local involvement of all sections of the population will be necessary in the fulfilment of these tasks.
The central government has the responsibility for ensuring that there is a common framework of principles and practices ap-plicable to the whole country and for seeing to it that all areas of the country have equitable access to national resources. However, it is not the function of central government to involve itself in each and every decision that has to be taken at the regional or local levels. Such functions should clearly be dele-gated to these authorities and performed by them.
Similarly, when we speak of a united South Africa we do not envisage the elimination of cultural, linguistic, religious and political differences. On the contrary, we regard the multiplicity of opinions, beliefs, faiths, tastes, cultures and preferences as contributing towards the richness and texture of South African life. What the new Constitution should avoid at all costs is vesting political rights in different linguistic, cultural, ethnic or religious groups.
A free South Africa must therefore ensure that these differences do not become the source of division or conflict or the means of perpetuating and promoting domination or privilege.
The new Constitution must consistently and clearly affirm the fundamental principle of equal and undifferentiated citizenship so that the differences of culture, interest and personality can then express themselves in a constructive, free and non-conflictual way.
The government must be democratic in the universally accepted meaning of the term. It must be the government of the people, by the people, for the people. It must be chosen by the people in free, fair and regular elections. It must be removable if it loses the confidence of the voters. Elections must be based on the principle of universal and equal suffrage on a common voters roll without distinction as to race, language, creed, class, social position, birth or gender.
Illiterate voters should not be disadvantaged. The precise method of voting and electoral system can be negotiated within the framework of these universal principles. The African National Congress favours the system of proportional representation, with regional and national lists.
Secondly, the legislature should be representative of the people as a whole, reflecting such differences of political views and interests as may be present in the community at any particular time.
Thirdly, the institutions of government should not be restricted to any language, religious, racial, ethnic or cultural grouping. The central, regional and local government structures including the law enforcement agencies and the administration of justice should reflect the composition of South Africa as a whole and draw on the talents and life experiences of all. Similarly, they should act in a fair and objective manner towards all, without fear, favour or prejudice.
Fourthly, government must be open. Apartheid South Africa has been a highly authoritarian society, characterised by arbitrary decision-making by officials and by excessive secrecy. All South Africans have the right to be informed about the issues and to know what the basis of governmental decisions is.
There is far too much fear of the government. We must secure constitutional barriers to detention without trial, to spying on citizens, secret files, dirty tricks departments, disinformation and the use of government money to promote party political objectives.
Fifthly, government should be based on the principle of active involvement of the people. The existence of civic associations, religious bodies, ratepayers organisations, trade unions and other independent bodies should be encouraged. Similarly government should collaborate with non-governmental organisations, without interfering with their autonomy.
Finally, government should reflect the will of the majority, be effective but not all powerful. It should operate within the framework of the Constitution, acknowledging a separation of powers and the existence of fundamental rights and freedoms as guaranteed in a Bill of Rights.
A non-racial South Africa means a South Africa in which all the artificial barriers and assumptions which kept people apart and maintained domination, are removed. In its negative sense, non-racial means the elimination of all colour bars. In positive terms it means the affirmation of equal rights for all.
It presupposes a South Africa in which every individual has an equal chance, irrespective of his or her birth or colour. It recognises the worth of each individual.
A non-racial Constitution can be adopted rapidly but a non-racial South Africa would take many years to evolve. Yet, although the massive discrepancies in education, health and living conditions imposed by de cades of racial discrimination cannot be eliminated by constitutional declaration, the Constitution must provide the positive means to reduce progressively the imbalances and inequalities and to ensure that everybody has an equal chance in life.
The new Constitution must reflect a commitment to full, free and equal participation in the new South Africa. Law and practice keep South African women out of their rightful place in helping to build democracy and enable a new nation to evolve, and deprive them of their human rights as individuals.
The new Constitution must therefore:
- guarantee equal rights for women and men in all spheres of public and private
- create mechanisms whereby the discrimination, disabilities and disadvantages
to which women have been subjected are rapidly removed;
- give appropriate recognition to reproductive and birth rights;
- guarantee constitutional protection against sexual violence, abuse, harassment
- ensure that women are heard in all issues and participate actively in all
levels of society.
A Bill of Rights based on universally recognised principles of human rights should form an integral part of the new Constitu-tion. In particular, it should guarantee all South Africans against the violations of human rights associated with apartheid and stress the principle of the equal dignity and worth of all South Africans.
BILL OF RIGHTS
The Bill of Rights should in clear and unambiguous language guarantee the rights of personal freedom and political expression. It should also protect and enhance rights of the individual to practise her or his religion and culture and speak her or his language. It should acknowledge the importance of securing minimum conditions of decent and dignified living for all South Africans.
It should create mechanisms for enforcing these rights. In particular, the courts should have a primary role in ensuring that the Bill of Rights is operative. A Constitutional Court that enjoys the respect of all South Africans, that draws on the experience and talents of the whole population, that is independent and that functions in a manifestly fair and objective fashion, accountable only to the principles of the Constitution, should be created.
Similarly, a Human Rights Commission should be established to ensure that violations of human rights are investigated and appropriate remedies found, examine pat terns of discrimination and make proposals for their elimination.
Finally, the post of Ombud should be created to deal with questions of abusive, arbitrary, capricious, discourteous and corrupt exercise of office by any official.
The Constitution should guarantee the free articulation of differences within the frame work of equal rights and tolerance.
An open society requires guarantees for the free functioning of non-governmental organisations, such as religious bodies, trade unions, sporting and cultural associations, subject only to respect for fundamental human rights as set out in the Constitution.
Non-governmental organisations should be encouraged to collaborate with the Government in furthering the aims of the Constitution, without thereby compromising their identity or independence.
All men and women shall be entitled to all necessary information to enable them to make effective use of their rights as citizens, workers and consumers and to impart such information.
There should be freedom of the press, and the media should be open, accessible and respond to all the views, opinions and interests of the community.
THE CIVIL, THE DEFENCE, POLICE AND PRISON SERVICES
The three principal qualities of the civil service, the defence, police and prison service shall be:
representativeness, competence and impartiality.
All organs of government shall draw on the life experience and talents of all sectors of the community in such a manner as to instil a common South African perspective of public service. The present barriers based on race shall be eliminated and special steps shall be taken to redress patterns of discrimination attributable to apartheid.
It is in the interest of the population of a free South Africa that the standard and quality of service of the public service shall be as high as possible. To attain this goal and consistent with the principle of representativity, special programmes of training, retraining and advancement shall be undertaken to en able the best South Africans to give the best possible service to all their fellow citizens.
The organs of government shall be account able to Parliament and to the whole community. It is not their function to serve the interests of any party or sectional grouping. Impartiality presupposes a balanced composition of the bodies concerned and a sensitivity to the needs and aspirations of all sections of the community.
There should be adequate control and supervision over the civil service, defence, police and prison service, an effective ma-chinery to investigate complaints against these services and the provision of redress
ADMINISTRATION OF JUSTICE
Without interfering with its independence, and with a view to ensuring that justice is manifestly seen to be done in a non-racial way and that the wisdom, experience and judicial skills of all South Africans are represented on the bench, the judiciary shall be transformed in such a way as to consist of men and women drawn from all sectors of South African society.
In a free South Africa, the legal system shall be transformed to be consistent with the new Constitution.
The Courts shall be accessible to all and shall guarantee to all equal rights before the law.
GUARANTEES OF OPPORTUNITIES FOR A DIGNIFIED LIFE FOR ALL
A new South Africa can never evolve if the white part of the population lives in relative luxury while the great majority of black South Africans live in conditions of want, squalor and deprivation.
Appropriate constitutional expression must therefore be found to guarantee basic human rights in relation to nutrition, shelter, education, health, employment and welfare. Government should be under a constitutional duty to work towards the establishment of a guaranteed and expanding floor of social, economic and educational rights for everybody.
It is particularly important that the Constitution facilitate access to education,
employment and land, so that people have real and effective opportunities for
improving their situation and pursuing happiness.
THE STRUCTURE OF A CONSTITUTION FOR A DEMOCRATIC SOUTH AFRICA
- South Africa shall be reconstituted as a non-racial, non-sexist, democratic
and unitary republic.
- South Africa shall consist of the whole territory recognised by the international
community as South Africa and shall include the Transkei, Ciskei, Venda and
- 3.1 Provision will be made for the three branches of government: the Executive,
Legislature and the Judiciary.
3.2 The head of the Executive will be an elected President who will also be
the Head of State. The question that arises is whether the President should
be elected directly by the public and vested with greater executive powers,
or whether s/he should be elected by and answerable to Parliament. This is
a matter on which there must be greater public debate.
3.3 The President will act in consultation with a Cabinet of Ministers headed
by a prime minister. The President will appoint a prime minister and other
members of the Cabinet.
3.4 The President may only hold office for a maximum of two terms of five
years each. He or she will be subject to removal only by a resolution passed
for good cause by a two thirds majority of the National Assembly.
3.5 The legislative branch of government will consist of two houses of Parliament.
The first house of Parliament will be the National Assembly which will be
elected on the basis of proportional representation by universal suffrage
in which all persons will have an equal vote without regard to race, gender,
ethnic origin, language or creed. The power of enacting legislation will primarily
be vested in the National Assembly.
3.6 The second house of Parliament will be the Senate, which will also be
elected according to universal suffrage without regard to race, gender, colour,
ethnic origin, language or creed. The Senate will neither be a corporatist
chamber made up of interest groups (youth, labour, women or business, or other
groups) nor will it represent ethnic or so-called “community” interest. The
electoral system will, however, be different to that adopted for the election
of the National Assembly, and will make provision for representation on a
regional but not on an ethnic basis.3.7 The Senate will be the guardian of
the Constitution, with power to refer any dispute concerning the interpretation
or application of the constitution to the appropriate court for its decision
and the power to review. Where appropriate the Senate may delay the passage
of legislation passed by the National Assembly, but it will not have the power
to veto legislation.
3.8 Elections for the Presidency, National Assembly and the Senate will be
held by secret ballot at periodic intervals of not more than five years and
procedures will be enacted to ensure that the elections are genuine and are
conducted in accordance with the principles and procedures consistent with
those obtaining in a democracy.
3.9 All South Africans shall be entitled to stand for election as President,
to Parliament and to other elected offices. Elections will be supervised by
an independent Electoral Commission, and conducted in accordance with the
standards design to ensure that the elections are fair and free.
- 4.1 The National Assembly will be elected on the basis of proportional representation.
The rationale behind proportional representation lies in the following factors:
- It encourages participation by groups which have significant followings.
This is more satisfactory than forcing political or subversive activity
outside parliament. Fringe parties would be excluded by imposing a threshold
of a 5% of the vote.
- Votes in access of fifty percent would count and hence be an inducement
to vote in areas where one party is dominant. Similarly ‘losing’ parties
votes in those areas would also contribute to their overall performance
- It leads to a more exact political reflection of the popularity of parties.
- It avoids the time, expense and accusations of bias in the process of
delimiting constituencies. This process can take months or years.
- It encourages participation by groups which have significant followings.
4.2 Proportional representation on the basis of a national party list system,
may presents problems. Under such a system there is no way of ensuring adequate
regional or local representation. Party bureaucracies benefit at the expense
of local party structures or local sentiment. There is little direct accountability
4.3 Accordingly the ANC favours incorporating elements of a national list
and regional accountability into the electoral system. This could be done
most simply by combining a national list with a regional list. For example:
regions could be allocated say half of the total seats, to be divided between
the different regions in proportion to the registered voters in each region.
The remaining half of the seats could be allocated on a national basis. Voters
would vote for a party within their region and the regional seats will be
allocated between the parties according to the percentages obtained by each
party in each region. The second stage would be for regional votes to be aggregated
so as to determine the national percentage of the total vote of each party.
Each party would then be entitled to nominate from its national list, the
additional members needed to make up its total entitlement of seats.
4.4 The end result will be the representation of each party in the assembly
in proportion to its total votes, but reflecting a regional choice of members
as well. The system requires the electorate to cast one vote only. It will
be easy to administer and easy for the voters to follow.
4.5 It is recommended that proportional representation, based on the list
system, be the preferred system of voting for Senate, regional and other elections.
- It is important that there be a guarantee of free and fair elections and
that procedures be enacted to see to this. It is therefore recommended that
the conduct and supervision of all elections be vested in an independent electoral
commission to oversee every aspect of elections from the printing of ballot
papers to the adoption of regulations for access by parties to the public
media and fairness to all political parties by the public media.
- There will be an independent judiciary responsible for the interpretation
of the Constitution and the application of the law of the land. The judicial
power will include the power to review and set aside legislation and actions
which are unconstitutional. A Constitutional Court, appointed by the President
on the recommendation of a judicial service commission, or by other methods
acceptable in a democracy, comprising of judges, practitioners and academics
would be set up.
- Provision will be made for elected local and regional government on the
basis of universal franchise without regard to race, gender, ethnic origin,
language or creed. Local and regional government will exercise delegated powers
but will have wide discretions in regard to the priorities to be pursued at
these levels, provided always that such policies do not conflict with national
policies. Functions presently vested in the provincial administrations will
be vested in the regional government. The boundaries of local and regional
districts will be determined with due regard to economic and development considerations
and without regard to race, colour, ethnic origin, language or creed.
- Provision shall be made for one common and equal citizenship acquired by
birth, descent and naturalisation in accordance with conventional standards.
Provision will also be made for the restoration of South African citizenship
to persons ~ho have lost their citizenship as result of the denationalisation
process through the homelands policy, or as a result of having gone into exile
for political reasons, and provision will also be made for the acquisition
of South African citizenship by the spouses and children of such persons.
- 9.1 All languages of South Africa will have equal status. They will be set
out in a Schedule to the Constitution and will include in alphabetical order
the following Afrikaans, English, Sipedi, Sesotho, Seswati, Tsonga, Tswana,
Venda, Xhosa, Zulu.
9.2 The State shall take all reasonable and necessary steps to protect, promote
and enhance the language rights of all the people of South Africa in relation
to education and culture and in the functioning of the State at local, regional
and national levels.
9.3 The language policy of the state shall be directed towards promoting and
encouraging multilingualism and preventing the use of any language or languages
for the purposes of domination or division.
9.4 The State shall, however, be empowered to make reasonable provision by
law for the use of one or more of the languages in different regions of the
country, or for specific purposes.
9.5 The question may, of course be asked whether there should be one official
language for the country. But if this choice is made it would mean the demotion
of some languages or the promotion of a single one. Also, it would mean that
the official language would be one which most of the people either do not
speak or do not speak fluently.
9.6 It would seem therefore that the most appropriate thing to do is to give
equal status to all languages subject to the right of the Government to give
primacy to one or more languages in any region or throughout the state as
the language of administrative communication or judicial record, or for other
purposes either throughout the State or in any area. But every one should
be entitled to use her or his language for purposes of communicating with
the public service.
- 10.1 There will be a justiciable bill of rights leaving the way open for
legitimate state action but affirming and protecting internationally recognised
rights and freedoms including equality before the law; freedom from detention
without trial, protection against arbitrary arrest and detentions; protection
against arbitrary search and seizure; the prohibition of forced labour; the
right to fair trail; the prohibition of cruel and unusual punishment, protection
of life including the abolition of the death sentence; protection of women’s
rights; protection of children, freedom from discrimination; the right to
privacy; freedom of expression including a free press; the right to information;
freedom of religion and conscience; freedom of assembly; freedom of association;
freedom of movement including the right of citizens to leave and return to
South Africa; trade union rights including the right to work and the right
to strike; the right to form political parties; the right to education, welfare
and health care consistent with the needs of the people and the resources
of the state; environmental rights; family and cultural rights, and providing
for just compensation to be paid for property taken by the state.
10.2 We do not propose to discuss here the formulation of each right and the
enforcement of rights as this has already been done in a detailed fashion
in a discussion paper The Draft Bill of Rights published in November 1990
by the African National Congress.
- Provision will be made for discrimination to be eliminated in substance
as well as in form. At all levels of government the state will be empowered
to pursue policies of affirmative action for the advancement of persons who
have been socially, economically or educationally disadvantaged by past discriminatory
laws and practices and in order to redress social, economic and educational
imbalances in South Africa resulting from such discrimination with special
regard to the maldistribution of land and the need for housing. Special provision
will also be made to redress the added discrimination which has been suffered
by women and the victims of forced removals.
- All discriminatory legislation and all other legislation inconsistent with
the Bill of Rights will be invalidated by the Bill of Rights. All other legislation
will remain in force unless repealed by parliament or set aside by a court
under its power of judicial review.
- There will be a public service commission charged with the responsibility
of overseeing the recruitment, promotion and dismissal to and from posts in
the civil service. Such a commission will also be required to implement an
affirmative action programme in regard to appointments to senior positions
in order to redress existing race and gender disparities. Provision will be
made for a representative structuring of the public service, the police service
and the defence services and to ensure that the public service will be accountable
for its actions.
- There will be an independent Ombud with powers to investigate complaints
against members of the public service including the police and other holders
of public and private power and to investigate allegations of corruption.
- The Constitution will also make provision for a state of emergency to be
declared when the life of the nation is threatened. Such a power will be subject
to strict controls by Parliament and the judiciary. The Constitution will
provide for the recognition and protection as far as possible of fundamental
rights during the period of emergency.
- The Constitution will be subject to amendment only if a majority of two
thirds of the national assembly approve of the amendment or if approved by
two thirds of the votes cast at a national referendum.