Constitution of South Africa

The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the human rights and duties of its citizens, and defines the structure of the Government. The current constitution, the country's fifth, was drawn up by the Parliament elected in 1994 general election. It was promulgated by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. The first constitution was enacted by the South Africa Act 1909, the longest-lasting to date.
Since 1997, the Constitution has been amended by eighteen amendments. The Constitution is formally entitled the "Constitution of the Republic of South Africa, 1996." It was previously also numbered as if it were an Act of ParliamentAct No. 108 of 1996but, since the passage of the Citation of Constitutional Laws Act, neither it nor the acts amending it are allocated act numbers.

History

Previous Constitutions of South Africa

The South Africa Act 1909, an act of the Parliament of the United Kingdom, unified four British coloniesCape Colony, Transvaal Colony, Orange River Colony and Natal Colonyinto the Union of South Africa, a self-governing dominion.
The Republic of South Africa Constitution Act, 1961 replaced the Queen with a State President, but otherwise left the system of government largely unchanged. In a referendum, the first national election with a solely white electorate, the Act was narrowly approved, with a substantial minority in the Cape province and a strong majority in Natal opposing it.
The Republic of South Africa Constitution Act, 1983, again approved by a whites-only referendum, created the Tricameral Parliament, with separate houses representing Whites, Coloureds and Indians but without representation for Blacks. The figurehead State President and executive Prime Minister were merged into an executive State President, chosen by parliament. This characteristic remains to date and is nearly unique to South Africa.
The Constitution of the Republic of South Africa, 1993 or Interim Constitution was introduced at the end of apartheid to govern the period of transition. It introduced, for the first time, the framework of a liberal democracy, universal adult suffrage and a bill of rights.

Negotiations

An integral part of the negotiations to end apartheid in South Africa was the creation of a new constitution. One of the major disputed issues was the process by which such a constitution would be adopted. The African National Congress insisted that it should be drawn up by a democratically elected constituent assembly, while the governing National Party feared that the rights of minorities would not be protected in such a process, and proposed instead that the constitution be negotiated by consensus between the parties and then put to a referendum.
Formal negotiations began in December 1991 at the Convention for a Democratic South Africa. The parties agreed on a process whereby a negotiated transitional constitution would provide for an elected constitutional assembly to draw up a permanent constitution. The CODESA negotiations broke down, however, after the second plenary session in May 1992. One of the major points of dispute was the size of the supermajority that would be required for the assembly to adopt the constitution: The NP wanted a 75 per cent requirement, which would effectively have given it a veto.
In April 1993, the parties returned to negotiations, in what was known as the Multi-Party Negotiating Process. A committee of the MPNP proposed the development of a collection of "constitutional principles" with which the final constitution would have to comply, so that basic freedoms would be ensured and minority rights protected, without overly limiting the role of the elected constitutional assembly. The parties to the MPNP adopted this idea and proceeded to draft the Interim Constitution of 1993, which was formally enacted by Parliament and came into force on 27 April 1994.

Interim Constitution

The Interim Constitution provided for a Parliament made up of two houses: a 400-member National Assembly, directly elected by party-list proportional representation, and a ninety-member Senate, in which each of the nine provinces was represented by ten Senators, elected by the provincial legislature. The Constitutional Assembly consisted of both houses sitting together, and was responsible for drawing up a final constitution within two years. The adoption of a new constitutional text required a two-thirds supermajority in the Constitutional Assembly, as well as the support of two-thirds of senators on matters relating to provincial government. If a two-thirds majority could not be obtained, a constitutional text could be adopted by a simple majority and then put to a national referendum in which sixty per cent support would be required for it to pass.
The Interim Constitution contained 34 constitutional principles with which the new constitution was required to comply. These included multi-party democracy with regular elections and universal adult suffrage, supremacy of the constitution over all other law, a quasi-federal system in place of centralised government, non-racism and non-sexism, the protection of "all universally accepted fundamental rights, freedoms and civil liberties," equality before the law, the separation of powers with an impartial judiciary, provincial and local levels of government with democratic representation, and protection of the diversity of languages and cultures. The Bill of Rights, now in Chapter Two of the Constitution of South Africa, was largely written by Kader Asmal and Albie Sachs. The new constitutional text was to be tested against these principles by the newly established Constitutional Court. If the text complied with the principles, it would become the new constitution; if it did not, it would be referred back to the Constitutional Assembly.

Final text

The Constitutional Assembly engaged in a massive public participation programme to solicit views and suggestions from the public. As the deadline for the adoption of a constitutional text approached, however, many issues were hashed out in private meetings between the parties' representatives. On 8 May 1996, a new text was adopted with the support of 86 per cent of the members of the assembly, but in the First Certification judgment, delivered on 6 September 1996, the Constitutional Court refused to certify this text. The Constitutional Court identified a number of provisions that did not comply with the constitutional principles. Areas of non-compliance included failures to protect the right of employees to engage in collective bargaining; to provide for the constitutional review of ordinary statutes; to entrench fundamental rights, freedoms and civil liberties and to sufficiently safeguard the independence of the Public Protector and Auditor-General as well as other areas of non-compliance in relation to local government responsibilities and powers.
The Constitutional Assembly reconvened and, on 11 October, adopted an amended constitutional text containing many changes relative to the previous text. Some dealt with the court's reasons for non-certification, while others tightened up the text. The amended text was returned to the Constitutional Court to be certified, which the court duly did in its Second Certification judgment, delivered on 4 December. The Constitution was signed by President Mandela on 10 December and officially published in the Government Gazette on 18 December. It did not come into force immediately; it was brought into operation on 4 February 1997, by a presidential proclamation, except for some financial provisions which were delayed until 1 January 1998.

The constitution consists of a preamble, fourteen chapters containing 244 sections, and eight schedules. Each chapter deals with a particular topic; the schedules contain ancillary information referred to in the main text.

Preamble

The preamble constitution is as follows:

Chapter 1: Founding Provisions

Chapter 1 enshrines in the constitution key national principles, defines the country's flag and national anthem, and specifies the official languages and principles of government language policy. It defines South Africa as "one, sovereign, democratic state" based on principles of human rights, constitutional supremacy, the rule of law and universal adult suffrage. The chapter contains a supremacy clause which establishes that all other law and actions are subject to the constitution.

Chapter 2: Bill of Rights

Chapter 2 is a bill of rights which enumerates the civil, political, economic, social and cultural human rights of the people of South Africa. Most of these rights apply to anyone in the country, with the exception of the right to vote, the right to work and the right to enter the country, which apply only to citizens. They also apply to juristic persons to the extent that they are applicable, taking into account the nature of the right. The rights enumerated are:

Section 9: everyone is equal before the law and has right to equal protection and the benefit of the law. Prohibited grounds of discrimination include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
Section 10: the right to human dignity.
Section 11: the right to life
Section 12: the right to freedom and security of the person, including protection against arbitrary detention and detention without trial, the right to be protected against violence, freedom from torture, freedom from cruel, inhuman or degrading treatment, the right to bodily integrity, and reproductive rights.
Section 13: freedom from slavery, servitude or forced labour.
Section 14: the right to privacy, including protection against search and seizure, and the privacy of correspondence.
Section 15: freedom of thought and freedom of religion.
Section 16: freedom of speech and expression, including freedom of the press and academic freedom. Explicitly excluded are propaganda for war, incitement to violence and advocacy of hatred based on race, ethnicity, gender or religion.
Section 17: freedom of assembly and the right to protest.
Section 18: freedom of association.
Section 19: the right to vote and universal adult suffrage; the right to stand for public office; the right to free, fair and regular elections; and the right to form, join and campaign for a political party.
Section 20: no citizen may be deprived of citizenship.
Section 21: freedom of movement, including the right to leave South Africa, the right of citizens to a passport and the right to enter South Africa.
Section 22: the right to choose a trade, occupation or profession, although these may be regulated by law.
Section 23: labour rights, including the right to unionise and the right to strike.
Section 24: the right to a healthy environment protected.
Section 25: the right to property, limited in that property may only be expropriated under a law of general application, for a public purpose and with the payment of compensation.
Section 26: the right to housing, including the right to due process with regard to court-ordered eviction and demolition.
Section 27: the rights to food, water, health care and social assistance, which the state must progressively realise within the limits of its resources.
Section 28: children's rights, including the right to a name and nationality, the right to family or parental care, the right to a basic standard of living, the right to be protected from maltreatment and abuse, the protection from inappropriate child labour, the right not to be detained except as a last resort, the paramountcy of the best interests of the child and the right to an independent lawyer in court cases involving the child, and the prohibition of the military use of children.
Section 29: the right to education, including a universal right to basic education.
Section 30: the right to use the language of one's choice and to participate in the cultural life of one's choice.
Section 31: the right of cultural, religious or linguistic communities to enjoy their culture, practise their religion and use their language.
Section 32: the right of access to information, including all information held by the government.
Section 33: the right to justice in administrative action by the government.
Section 34: the right of access to the courts.
Section 35: the rights of arrested, detained and accused people, including the right to silence, protection against self-incrimination, the right to counsel and legal aid, the right to a fair trial, the presumption of innocence and the prohibition of double jeopardy and ex post facto crimes.

Section 36 allows the rights listed to be limited only by laws of general application, and only to the extent that the restriction is reasonable and justifiable in "an open and democratic society based on human dignity, equality and freedom."
Section 37 allows certain rights to be limited during a state of emergency but places strict procedural limits on the declaration of states of emergency and provides for the rights of people detained as a result.