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Chapter 1 - The South African Constitution and Bill of Rights

History of constitutions in South Africa

There have been four Constitutions in South Africa:

• In 1910 Britain decided to withdraw from the government of South Africa and handed the country over to the white residents of South Africa. These people were the British settlers and the Boers. The first Constitution for the Union of South Africa was adopted in 1910. This gave rights to the white minority but took away the right to vote of the majority of South Africans.
• In 1960 the white government held a referendum to decide whether South Africa would become a Republic. On 31 May 1961 South Africa was declared a Republic and the government adopted the second Constitution. This also took away the rights of black people.
• In 1983 the government passed the third Constitution. This Constitution created the tricameral parliament, which meant there was a separate parliament for the White, Coloured and Indian groups. This Constitution excluded black people and automatically made them citizens of the homeland where they were born. They had no rights outside these homelands.
• In 1994, twenty-six parties negotiated and adopted an interim Constitution, that gave the vote to everyone. This Constitution lasted for two years. During that time the elected government worked as the Constitutional Assembly and had to draw up a final Constitution.

Writing the final Constitution

CODESA

On 2 February 1990, the National Party government unbanned political parties, released many political prisoners and detainees, and unbanned many people, including Nelson Mandela.

On 20 and 21 December the first session of CODESA (Convention for a Democratic South Africa) was held. There were 19 political groups at this event. All parties agreed to support the Declaration of Intent, which said that they would begin writing a new Constitution for South Africa.

On 15 May 1992 CODESA 2 met at the World Trade Centre. After three days it was clear that there were many tensions. The ANC and COSATU decided to have a campaign of 'rolling mass action'. The first stayaway was on 16 June. On 17 June people marching in Boipatong were shot and many people were killed. After this the ANC stopped talks.

The Multi-party Negotiating Process

In March 1993 full negotiations began at the World Trade Centre . The parties present decided to use the name MPNP - Multi-party Negotiating Process - instead of CODESA. There were twenty-six parties taking part in the MPNP. The MPNP had to write and adopt an interim Constitution to say how the government would govern after the elections on 27 April 1994. The MPNP drew up the Interim Constitution which was to last for two years. The MPNP also drew up and adopted the 34 Constitutional Principles. These principles would guide the Constitutional Assembly (CA) which had to draw up the final Constitution.

The Constitutional Principles

All the parties at the MPNP agreed on the 34 Constitutional Principles when they were drawing up the interim Constitution. They agreed that the CA had to follow these principles when it was writing the final Constitution. If the final Constitution didn't follow and include all the Constitutional Principles then the Constitutional Court would not be able to certify the Constitution. For example, one of the Constitutional Principles was that the final Constitution had to include a Bill of Rights. If it didn't have a Bill of Rights, then the Constitutional Court would not be able to certify it.

The Constitutional Assembly (CA)

After the elections in 1994 the new Parliament - working as the Constitutional Assembly (CA) - began writing the final Constitution.

After two years, on 8 May 1996, the CA adopted the final Constitution. But this Constitution still had to be certified by the Constitutional Court. This meant that the Constitutional Court had to make sure that the final Constitution followed and included all the 34 Constitutional Principles that the MPNP had agreed on.

The Constitutional Court's first hearing

The Constitutional Court had its first hearing about the Constitution in July 1996. In September the judges of the court said the Constitution did not follow all of the 34 Constitutional Principles and it refused to certify the Constitution.

So, the CA came together again and made some changes to the Constitution. In October 1996 they asked the Constitutional Court to check the changes. This time the Constitutional Court agreed to certify the Constitution. The final Constitution was passed by Parliament and became law on 18 December 1996.