Introductory Note

Towards a new constitution

After a long and painful struggle, in which millions participated over the generations, and many gave their lives, South Africa is at last about to get a new Constitution. There are still heavy battles ahead, but the achievement of non-racial democracy in our country cannot be too far away. The dream of the founders of the ANC, namely, to end the colonial status of the African people and accord full citizenship rights to all South Africans on an equal basis, is about to be realised.

A Constitution defines the rights of the people, the powers of the government, the way it functions and the manner in which it is chosen.

The 1910 Constitution of South Africa gave no rights to the majority of the people. It provided for an all-powerful government, but a government consisting only of whites elected virtually only by whites; the minimal voting

page i
rights which black South Africans had were finally taken away by constitutional trickery. Its only good result was to lead directly to the unity of its opponents and the formation of the ANC. The 1961 Constitution which declared South Africa to be a Republic, ushered in the period of most bitter oppression and denial of rights for our people. The 1983 Constitution attempted to co-opt the Coloured and Indian people as subaltern participants in the white-controlled Tricameral Parliament, leaving Africans out altogether. Its only virtue was to lead to the creation of the UDF.

The new Constitution which our struggles have placed on the agenda, will for the first time in the history of South Africa provide for all people to have rights, and for all people to choose the country's government.

The Rights of the people

The rights of the people will be recorded in a Bill of Rights, which will be an integral part of our Constitution, as Bills of Rights are in most constitutions in the world. We want these rights to be guaranteed, so that our people will always enjoy them, and know that they can never be taken away. We look forward to a strong and

page ii
effective Parliament capable of dealing with the great tasks facing the nation, but a Parliament that will operate within an agreed set of fundamental principles based upon universally held ideas of freedom and justice.

The idea of basic rights and freedoms means the most to those who have suffered the most. In South African conditions, a Bill of Rights becomes the fundamental anti-apartheid document. It guarantees equal rights for all citizens, and defends each and every one of us against the kinds of tyranny and abuse which have flowed daily from the apartheid state. It is not the Constitution which creates the rights. Rather, the Constitution recognises and protects the rights which have been gain in struggle, struggle by the people of South Africa and struggle by people the world over.

Human Rights

The Universal Declaration of Human Rights was adopted in 1948 as a direct result of the struggle against the racist and inhuman ideas of nazism and fascism. The International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, were adopted by the United Nations in 1966 when the de-colonisation

page iii
process was at its height and when new and more wide-ranging concepts of human rights were being accepted.

In preparing the draft text which follows, we have relied heavily on these great documents. We have also drawn upon the European Convention of Human Rights and the African Charter of Human and People's Rights, as well as provisions dealing with protection of human rights in a great many Constitutions, ranging from those of India to West Germany to the USA to Namibia.

The Freedom Charter - The Source

Above all, we have relied on the texts which have emerged from our own freedom struggle in South Africa. The Freedom Charter, adopted at Kliptown in 1955, is the great source of any Bill of Rights in our country. It did not deal with the institutions of government, nor did it indicate how the rights it proclaimed were to be guaranteed, but it did set out a firm vision of an apartheid-free future. In its January 8 statement of 1987, the ANC declared its commitment to a Bill of Rights that would be justiciable, that is, would be protected by the courts. In 1988, the

page iv
NEC issued its Constitutional Guidelines which gave an important position to a Bill of Rights.

The Constitutional guidelines

The Guidelines were extensively discussed inside and outside of the organisation, and a number of seminars were held specifically to analyse and enrich the text. The comments received ranged from insistence that the issue of women's rights be treated more extensively, to vigorous proposals that social and economic rights be spelt out more explicitly and that the question of access to the land receive fuller attention. We have tried to incorporate these observations into the text set out below.

We have also benefited from receiving proposals from a wide range of organisations associated with the UDF, including those concerned with such issues as ecology, social welfare, gay and lesbian rights and rights of the disabled, and we have consulted draft proposals on workers' rights from COSATU, the Communist Party and other organisations involved with workers' struggles.

There is accordingly nothing essentially new and nothing secret in the document. It does not deal with issues such as the electoral system,

page v
how Parliament should be constituted, the territorial division of the country, the way the government should be composed and the many other themes related to the institutional arrangements of democracy. A Bill of Rights to some extent stands on its own. Possibly its enforcement mechanisms have to mesh in with or be adapted to the specific way in which government and the judiciary are structured, but its basic principles should be capable of incorporation into any democratic system.

Accessibility

We have aimed at open and accessible language. This is in the tradition of the first great modern Bill of Rights, namely, that contained in the Amendments to the American Constitution, adopted immediately after the Revolution against the British Crown. In our view, a Bill of Rights should set out general principles and not attempt to deal with each and every eventuality in advance. Moreover, its terms should be such that any person can understand them. It might be that other parts of the Constitution will be more technical: the Bill of Rights is the Chapter in the Constitution that should be capable of the most direct comprehension.

page vi

Response

What follow is a draft text for consideration at this stage by the members of our organisation. We look forward to receiving the fullest commentaries possible from the regions, so that we can amend and enrich the text before submitting it in finalised form for consideration by the NEC. We would appreciate comments on the overall shape and presentation of the document as well as on the detailed clauses. If there are any essential matters appropriate for a Bill of Rights that we have left out, we would like to be advised of them. We hope in due course, together with the ANC's allies and other interested persons, to organise a workshop or a series of workshops on the document.

What is contained in a Bill of Rights?

In the meanwhile, for the information of those members not familiar with Bills of Rights, we offer a few prefatory remarks on certain specific features of the document.

In the first place, in keeping with the approach of most contemporary human rights documents, we do not feel that it is necessary to make a constitutional choice between having

page vii
freedom or having bread. We do not want freedom without bread, nor do we want bread without freedom. We want freedom, and we want bread. The document thus opts firmly and unequivocally for the fundamental rights and freedoms associated with a democratic society. Indeed, abhorrence of any form of arbitrary or oppressive behaviour is underlined in a whole series of articles which not only affirm classic civil, political and legal rights, but which assert the claims made in modern society for freedom of information, freedom from censorship, and freedom from surveillance and secret political files. Members will notice too that the draft proposes the abolition of capital punishment and the ending of detention without trial.

At the same time, the document gives considerable attention to social, economic and educational rights. There are some lawyers who argue that these rights should not appear in a Bill of Rights at all, since they are not enforceable through recourse to the courts. We do not agree. These rights are contained in nearly all contemporary human rights documents. In Europe they appear in the Charter of Social Rights. In the Irish, Indian and Namibian Constitutions, they appear as Directives of State Policy. Our approach

page viii
has been to identify certain needs as being so basic as to constitute the foundation of human rights claims, namely, the rights to nutrition, education, health, shelter, employment and a minimum income. In South Africa, it is not just a question of dealing with poverty such as you might find in any country, but responding to the social indignities and inequalities created as a direct result of State policies under apartheid. The strategy proposed for achieving the realisation of these rights is to acknowledge them as basic human rights, and require the State to devote maximum available resources to their progressive materialisation.

The State's role in enforcing the bill of rights

In particular the document envisages the State establishing a minimum floor of enforceable statutory rights in relation to each area. Thus, with regard to nutrition, there can be the compulsory furnishing of a minimum diet to children; in the case of education for all, free and compulsory primary education, and a duty on local authorities to provide access to literacy classes; in respect of shelter, there could be the duty to furnish electricity or other forms of

page ix
energy and as well as access to clean water for every home, and also the need to take account of the availability of alternative accommodation before ordering eviction.

Economy

In other words, whichever government is in office, there will be a constitutional duty progressively to expand the floor of basic human rights in these areas. Exactly how the economy is to be organised and how revenue is to be raised is a matter for the parties to argue about and for the electorate to decide upon. Governments and Oppositions will come and go, but all will have to ensure that resources are devoted to providing the minimum elements of a decent life for all South Africans.

Language, Culture and Religion

A second feature of the document is the attention it pays to securing language, cultural and religious rights. Extensive recognition is given to the right of people to organise their own associations in keeping with the principles of a vigorous civil society exiting autonomously of the State. Bearing in mind the importance of religion to many South Africans, considerable

page x
attention is paid to the question of religious freedom. Similarly, the question of language rights is dealt with on the basis not of taking away language rights that already exist, but of giving recognition to the many South Africa languages that have been marginalised or recognised only in the context of Bantustans.

Gender and Family

Thirdly, and in direct response to the recommendations of the ANC in-house Seminar on Gender Rights and on the Family, the principle of equal rights between men and women is referred to throughout the document and not just in a special clause tacked on near the end, and there are a number of articles which seek to protect the constitutional right of women not to be abused or assaulted or treated as inferior, whether in the home, or at work or in public places. Attention is also given to the principle of non-discrimination against single-parent families or against children born out of wedlock or on the grounds of persons being gay or lesbian.

page xi

Workers' Rights

In the fourth place, there are a number of Articles devoted to the theme of workers' rights. This is a complicated area in which many of the rights claimed have to be understood agains the background of anti-Union rulings by the courts in this country and others. The opinions of union members will be especially valuable in this area.

The Disabled

Fifthly, there is a special section dealing with the rights of disabled persons which takes into account proposals made by the UDF affiliate, Disabled Persons of South Africa.

Children

Sixthly, there is a section on children's rights which draws heavily on the provisions of the International Convention on the Rights of the Child.

Property

Seventhly, the document attempts to give an equitable framework for dealing with the emotive question of property rights. Since a Bill of Rights is a document for all South Africans, and

page xii
not a manifesto or programme of the ANC alone, the issue has to be looked at from all points of view, but without sacrificing the just claims of the people. In the past, successive racist governments have trampled deliberately and relentlessly on property rights of blacks. The question of access to land cannot be ignored. In the Namibian Constitution the formula was used of just compensation for land expropriated in public interest. The proposal made here is somewhat more textured, and draws extensively on the formula used in the post-World War II Constitution in West Germany which sought to reconcile in an equitable way the interests of the individual owner in receiving compensation with the interests of the larger community.

Environment

In the eighth place, there are several clauses which deal with the importance of protecting the environment, a theme not found in older Constitutions, but one which is achieving increasing recognition today.

Affirmative Action

Ninthly, the importance is highlighted of providing a clear constitutional framework for

page xiii
affirmative action to overcome race and gender discrimination, and for positive action to overcome the institutional patterns of apartheid and to restructure governmental and other institutions so as to make them more balanced.

Limitations

Tenthly, the limitations clause does not set out in detail the limitations that might be imposed in relation to the exercise of rights. Instead, the formula is used of permitting legislation to regulate or limit the exercise of rights to the extent that such limitations would be acceptable in democratic societies. The question of the suspension of rights during a state of emergency is not dealt within in the document since it cannot be adequately treated without knowing what the organs of government will be [for example, who will declare a state of emergency, the President or the Prime Minister, and to what body would he or she be accountable].

It follows from the whole approach adopted in the document, however, that any suspension of rights should be strictly controlled, with well-defined limits and explicit accountability and subject to be treated in a later document.

page xiv

Constitutional courts and Ombudsman

Finally, attention must be drawn to three particular aspects of the enforcement mechanisms: the need to set up a constitutional court, to establish a Human Rights Commission and to create the office of Ombudsman.

There are many other aspects which members might find interesting or controversial. We welcome comments on every aspect of the document. The voice of the members is vital if correctly balanced and appropriately formulated text is to be presented to the NEC for its consideration.

Zola Skweyiya

(Chairperson of the Constitutional Committee)

 

Send your responses to :

The ANC Constitutional Committee
c/o The Centre for Development Studies (CDS)
University of the Western Cape
Private Bag x17 Bellville 7535
South Africa.

page xv

Introductory Note

Towards a new constitution

After a long and painful struggle, in which millions participated over the generations, and many gave their lives, South Africa is at last about to get a new Constitution. There are still heavy battles ahead, but the achievement of non-racial democracy in our country cannot be too far away. The dream of the founders of the ANC, namely, to end the colonial status of the African people and accord full citizenship rights to all South Africans on an equal basis, is about to be realised.

A Constitution defines the rights of the people, the powers of the government, the way it functions and the manner in which it is chosen.

The 1910 Constitution of South Africa gave no rights to the majority of the people. It provided for an all-powerful government, but a government consisting only of whites elected virtually only by whites; the minimal voting rights which black South Africans had were finally taken away by constitutional trickery. Its only good result was to lead directly to the unity of its opponents and the formation of the ANC. The 1961 Constitution which declared South Africa to be a Republic, ushered in the period of most bitter oppression and denial of rights for our people. The 1983 Constitution attempted to co-opt the Coloured and Indian people as subaltern participants in the white-controlled Tricameral Parliament, leaving Africans out altogether. Its only virtue was to lead to the creation of the UDF.

The new Constitution which our struggles have placed on the agenda, will for the first time in the history of South Africa provide for all people to have rights, and for all people to choose the country's government.

The Rights of the people

The rights of the people will be recorded in a Bill of Rights, which will be an integral part of our Constitution, as Bills of Rights are in most constitutions in the world. We want these rights to be guaranteed, so that our people will always enjoy them, and know that they can never be taken away. We look forward to a strong and effective Parliament capable of dealing with the great tasks facing the nation, but a Parliament that will operate within an agreed set of fundamental principles based upon universally held ideas of freedom and justice.

The idea of basic rights and freedoms means the most to those who have suffered the most. In South African conditions, a Bill of Rights becomes the fundamental anti-apartheid document. It guarantees equal rights for all citizens, and defends each and every one of us against the kinds of tyranny and abuse which have flowed daily from the apartheid state. It is not the Constitution which creates the rights. Rather, the Constitution recognises and protects the rights which have been gain in struggle, struggle by the people of South Africa and struggle by people the world over.

Human Rights

The Universal Declaration of Human Rights was adopted in 1948 as a direct result of the struggle against the racist and inhuman ideas of nazism and fascism. The International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, were adopted by the United Nations in 1966 when the de-colonisation process was at its height and when new and more wide-ranging concepts of human rights were being accepted.

In preparing the draft text which follows, we have relied heavily on these great documents. We have also drawn upon the European Convention of Human Rights and the African Charter of Human and People's Rights, as well as provisions dealing with protection of human rights in a great many Constitutions, ranging from those of India to West Germany to the USA to Namibia.

The Freedom Charter - The Source

Above all, we have relied on the texts which have emerged from our own freedom struggle in South Africa. The Freedom Charter, adopted at Kliptown in 1955, is the great source of any Bill of Rights in our country. It did not deal with the institutions of government, nor did it indicate how the rights it proclaimed were to be guaranteed, but it did set out a firm vision of an apartheid-free future. In its January 8 statement of 1987, the ANC declared its commitment to a Bill of Rights that would be justiciable, that is, would be protected by the courts. In 1988, the NEC issued its Constitutional Guidelines which gave an important position to a Bill of Rights.

The Constitutional guidelines

The Guidelines were extensively discussed inside and outside of the organisation, and a number of seminars were held specifically to analyse and enrich the text. The comments received ranged from insistence that the issue of women's rights be treated more extensively, to vigorous proposals that social and economic rights be spelt out more explicitly and that the question of access to the land receive fuller attention. We have tried to incorporate these observations into the text set out below.

We have also benefited from receiving proposals from a wide range of organisations associated with the UDF, including those concerned with such issues as ecology, social welfare, gay and lesbian rights and rights of the disabled, and we have consulted draft proposals on workers' rights from COSATU, the Communist Party and other organisations involved with workers' struggles.

There is accordingly nothing essentially new and nothing secret in the document. It does not deal with issues such as the electoral system, how Parliament should be constituted, the territorial division of the country, the way the government should be composed and the many other themes related to the institutional arrangements of democracy. A Bill of Rights to some extent stands on its own. Possibly its enforcement mechanisms have to mesh in with or be adapted to the specific way in which government and the judiciary are structured, but its basic principles should be capable of incorporation into any democratic system.

Accessibility

We have aimed at open and accessible language. This is in the tradition of the first great modern Bill of Rights, namely, that contained in the Amendments to the American Constitution, adopted immediately after the Revolution against the British Crown. In our view, a Bill of Rights should set out general principles and not attempt to deal with each and every eventuality in advance. Moreover, its terms should be such that any person can understand them. It might be that other parts of the Constitution will be more technical: the Bill of Rights is the Chapter in the Constitution that should be capable of the most direct comprehension.

Response

What follow is a draft text for consideration at this stage by the members of our organisation. We look forward to receiving the fullest commentaries possible from the regions, so that we can amend and enrich the text before submitting it in finalised form for consideration by the NEC. We would appreciate comments on the overall shape and presentation of the document as well as on the detailed clauses. If there are any essential matters appropriate for a Bill of Rights that we have left out, we would like to be advised of them. We hope in due course, together with the ANC's allies and other interested persons, to organise a workshop or a series of workshops on the document.

What is contained in a Bill of Rights?

In the meanwhile, for the information of those members not familiar with Bills of Rights, we offer a few prefatory remarks on certain specific features of the document.

In the first place, in keeping with the approach of most contemporary human rights documents, we do not feel that it is necessary to make a constitutional choice between having freedom or having bread. We do not want freedom without bread, nor do we want bread without freedom. We want freedom, and we want bread. The document thus opts firmly and unequivocally for the fundamental rights and freedoms associated with a democratic society. Indeed, abhorrence of any form of arbitrary or oppressive behaviour is underlined in a whole series of articles which not only affirm classic civil, political and legal rights, but which assert the claims made in modern society for freedom of information, freedom from censorship, and freedom from surveillance and secret political files. Members will notice too that the draft proposes the abolition of capital punishment and the ending of detention without trial.

At the same time, the document gives considerable attention to social, economic and educational rights. There are some lawyers who argue that these rights should not appear in a Bill of Rights at all, since they are not enforceable through recourse to the courts. We do not agree. These rights are contained in nearly all contemporary human rights documents. In Europe they appear in the Charter of Social Rights. In the Irish, Indian and Namibian Constitutions, they appear as Directives of State Policy. Our approach has been to identify certain needs as being so basic as to constitute the foundation of human rights claims, namely, the rights to nutrition, education, health, shelter, employment and a minimum income. In South Africa, it is not just a question of dealing with poverty such as you might find in any country, but responding to the social indignities and inequalities created as a direct result of State policies under apartheid. The strategy proposed for achieving the realisation of these rights is to acknowledge them as basic human rights, and require the State to devote maximum available resources to their progressive materialisation.

The State's role in enforcing the bill of rights

In particular the document envisages the State establishing a minimum floor of enforceable statutory rights in relation to each area. Thus, with regard to nutrition, there can be the compulsory furnishing of a minimum diet to children; in the case of education for all, free and compulsory primary education, and a duty on local authorities to provide access to literacy classes; in respect of shelter, there could be the duty to furnish electricity or other forms of energy and as well as access to clean water for every home, and also the need to take account of the availability of alternative accommodation before ordering eviction.

Economy

In other words, whichever government is in office, there will be a constitutional duty progressively to expand the floor of basic human rights in these areas. Exactly how the economy is to be organised and how revenue is to be raised is a matter for the parties to argue about and for the electorate to decide upon. Governments and Oppositions will come and go, but all will have to ensure that resources are devoted to providing the minimum elements of a decent life for all South Africans.

Language, Culture and Religion

A second feature of the document is the attention it pays to securing language, cultural and religious rights. Extensive recognition is given to the right of people to organise their own associations in keeping with the principles of a vigorous civil society exiting autonomously of the State. Bearing in mind the importance of religion to many South Africans, considerable attention is paid to the question of religious freedom. Similarly, the question of language rights is dealt with on the basis not of taking away language rights that already exist, but of giving recognition to the many South Africa languages that have been marginalised or recognised only in the context of Bantustans.

Gender and Family

Thirdly, and in direct response to the recommendations of the ANC in-house Seminar on Gender Rights and on the Family, the principle of equal rights between men and women is referred to throughout the document and not just in a special clause tacked on near the end, and there are a number of articles which seek to protect the constitutional right of women not to be abused or assaulted or treated as inferior, whether in the home, or at work or in public places. Attention is also given to the principle of non-discrimination against single-parent families or against children born out of wedlock or on the grounds of persons being gay or lesbian.

Workers' Rights

In the fourth place, there are a number of Articles devoted to the theme of workers' rights. This is a complicated area in which many of the rights claimed have to be understood agains the background of anti-Union rulings by the courts in this country and others. The opinions of union members will be especially valuable in this area.

The Disabled

Fifthly, there is a special section dealing with the rights of disabled persons which takes into account proposals made by the UDF affiliate, Disabled Persons of South Africa.

Children

Sixthly, there is a section on children's rights which draws heavily on the provisions of the International Convention on the Rights of the Child.

Property

Seventhly, the document attempts to give an equitable framework for dealing with the emotive question of property rights. Since a Bill of Rights is a document for all South Africans, and not a manifesto or programme of the ANC alone, the issue has to be looked at from all points of view, but without sacrificing the just claims of the people. In the past, successive racist governments have trampled deliberately and relentlessly on property rights of blacks. The question of access to land cannot be ignored. In the Namibian Constitution the formula was used of just compensation for land expropriated in public interest. The proposal made here is somewhat more textured, and draws extensively on the formula used in the post-World War II Constitution in West Germany which sought to reconcile in an equitable way the interests of the individual owner in receiving compensation with the interests of the larger community.

Environment

In the eighth place, there are several clauses which deal with the importance of protecting the environment, a theme not found in older Constitutions, but one which is achieving increasing recognition today.

Affirmative Action

Ninthly, the importance is highlighted of providing a clear constitutional framework for affirmative action to overcome race and gender discrimination, and for positive action to overcome the institutional patterns of apartheid and to restructure governmental and other institutions so as to make them more balanced.

Limitations

Tenthly, the limitations clause does not set out in detail the limitations that might be imposed in relation to the exercise of rights. Instead, the formula is used of permitting legislation to regulate or limit the exercise of rights to the extent that such limitations would be acceptable in democratic societies. The question of the suspension of rights during a state of emergency is not dealt within in the document since it cannot be adequately treated without knowing what the organs of government will be [for example, who will declare a state of emergency, the President or the Prime Minister, and to what body would he or she be accountable].

It follows from the whole approach adopted in the document, however, that any suspension of rights should be strictly controlled, with well-defined limits and explicit accountability and subject to be treated in a later document.

Constitutional courts and Ombudsman

Finally, attention must be drawn to three particular aspects of the enforcement mechanisms: the need to set up a constitutional court, to establish a Human Rights Commission and to create the office of Ombudsman.

There are many other aspects which members might find interesting or controversial. We welcome comments on every aspect of the document. The voice of the members is vital if correctly balanced and appropriately formulated text is to be presented to the NEC for its consideration.

Zola Skweyiya

(Chairperson of the Constitutional Committee)

 

Send your responses to :

The ANC Constitutional Committee
c/o The Centre for Development Studies (CDS)
University of the Western Cape
Private Bag x17 Bellville 7535
South Africa.