While the multiparty forum negotiated the interim constitution, the final constitution was drafted by representatives of the citizenry who were present in the Constitutional Assembly in proportion to the number of votes their parties received in the 1994 election. In contrast to the first stage, there was also direct public participation, including submissions from citizens both in writing and in ‘listening’ forums in villages, towns and communities.18
Valli Moosa remembers that Mandela was very focused on certain issues. ‘One of them,’ he says, ‘was majority rule.’
We would come up with proportional representation, nine provinces, two chambers of Parliament, a Senate and National Assembly … [and] a Council of Provinces, and he would always ask the question, ‘How does this measure up to the need for majority rule? In what way is this standard majority rule?’ He kept an eagle eye on that; he didn’t want anything that was going to dilute the will of the majority and result in the elections of organs of power that were not in conformity with the will of the electorate … So, the idea of some kind of minority protection, minority rights, special privileges – anything of that sort he was not going to agree to … The other [thing] was that he was clear in his mind that what we were trying to establish was a modern democracy, modern in the sense that it would be non-racial, non-sexist and secular and [would] embody all of the modern concepts and human rights.19
His erstwhile deputy, Thabo Mbeki, recalls that Mandela was always present at decisive moments, as much in the drafting of the final constitution as the interim one. ‘On the issues which our negotiators raised with me, like property rights, the right to strike, the lockout and those issues, they would come to me and say, “Look, we’re having problems about this thing,” and then, indeed, Madiba would come into those discussions.’20
That Mandela made fewer, though decisive, interventions during the drafting of the final constitution was due in no small measure to matters having been settled in the interim phase and the thorough and intensive process of the Constitutional Assembly. Chaired by the ANC’s Cyril Ramaphosa with the National Party’s Leon Wessels as his deputy, the Constitutional Assembly involved the whole of Parliament – 400 members of the National Assembly and 90 members of the National Council of Provinces. It was not always straightforward. Ramaphosa remembers some of the difficulties:
There were moments in negotiating the final constitution, particularly when it was quite clear that De Klerk was getting cold feet about completely agreeing to the final provisions. Madiba would take him on and he was very good at moments like that. We knew that at any moment of deadlock we could rely on Madiba to unlock it. We would push all the difficult issues up to him to hammer them home and to get our position won and confirmed. Madiba was a resourceful leader, and he was knowledgeable and he kept himself abreast with developments, and he wanted to be briefed on a continuous basis.21
There was, however, a shadow hanging over the creation of the new constitution. As far back as the mid-1980s, the IFP had either been violently opposed or simply obstructive towards the struggle to bring in a new constitutional dispensation. Recently it had ‘flirted with the right wing, hoping to secure special powers and privileges for KwaZulu-Natal’.22 Rather than participate in the Constitutional Assembly on the same basis as other parties, the IFP demanded international mediation and staged a walkout during Mandela’s State of the Nation Address in 1995, deploying a welter of tactics to bolster its stance.
A visibly irritated Mandela characterised the IFP’s approach as an attempt ‘to assert a status in the constitution-making process, which is far above the support they got in the elections for the Constitutional Assembly’.23 In a speech at once conciliatory and impassioned, Mandela challenged the IFP to return to Parliament. He said:
‘We strongly disapprove of this action. Because it is here in these chambers where the blast furnace of policy formulation is located. It is here, that ideas should be pitted against one another and differences ironed out …
‘We disapprove of this behaviour from the point of view also of the interests of the country as a whole; it does not reinforce confidence on the part of our people and the international community in the capacity of leaders to use democratic institutions to resolve differences. But our concern goes particularly to those who voted the IFP into these institutions.
‘In this context, I wish to address them directly:
‘You elected these IFP representatives to articulate your interests and pursue what you hold dear to your hearts. You did so also because you were convinced that they are not cowards who would exit from these hallowed chambers at the slightest hint of a problem. You had confidence that they would stand ground in the National Assembly and the Senate and, within the rules, assert your point of view.
‘None of the problems they have raised will be resolved by means of walk-outs. It is your responsibility to call them to order. In the tradition of Shaka, Makhanda, Cetshwayo, Moshoeshoe, Ramabulana, Sekhukhune and Nghunghunyana, send them back to come and slog it out here in parliament and not to run away!*
‘Let me once more reiterate the principles which guide the ANC’s approach to the issue of international mediation, which has been raised, ostensibly, as the reason for this irrational behaviour.
‘Firstly, the ANC has stated over and over again that it is committed to the agreement, which was reached on 19 April 1994. It is precisely for this reason that a sub-committee was formed to look into the matter.
‘Secondly, sheer logic tells us that to invite any eminent persons to undertake this task requires that there should be clear terms of reference. This is precisely what the tri-partite sub-committee was discussing.
‘Thirdly, we are examining any steps that might be needed to deal with the issue. On the part of the ANC, we will delegate Deputy President Mbeki to take this matter up as soon as he returns from his trip abroad. In the meantime, I will this afternoon meet Chief Buthelezi at Genadendal in order to explore possible solutions to this problem.
‘Fourthly, the ANC – and I believe other rational parties – would not want to be party to an approach that seeks to treat a matter pertaining to the King and Kingdom of KwaZulu-Natal as if the King did not exist. Neither would we accept attempts to arrogate to any political party the right to speak on behalf of any king or kingdom.
‘Let me however make one issue very clear. While we do recognise the right of people to undertake any action within the limits of the law; while we are committed to political solutions to this problem; we cannot and must not, as a nation and as a government, allow threats and the actual perpetration of violence to go unchallenged.
‘We are confident that South Africans of all political persuasions, including the media, will support the right of government to carry out its obligations to the nation as prescribed in the constitution; that they shall not approach this matter in a manner that encourages irresponsibility, lawlessness and blackmail.’24
Mandela’s tough speech, aimed more at the rank and file of the IFP than its leaders – and which must have enormously riled Buthelezi and his lieutenants – was also for the ANC itself. The ANC was not blind to Mandela’s strivings, and it rankled that, when they were so close to resolving a historic problem, Buthelezi and the IFP would put up these hurdles.
But if others in his camp were frustrated, Mandela was doggedly willing to continue. He met with Buthelezi twice to try to convince the IFP to return to the Constitutional Assembly. But he was unsuccessful on both occasions. In the end there was no international mediation. It was like a football match that ends in a goalless muddle, with the last whistle blown long after the referee has left the pitch. Moreover, the Zulu king, in whose name the Constitutional Assembly had been repudiated, had lost interest, having himself now fallen out with his erstwhile sponsor, Buthelezi.
Unlike the IFP, the National Party pursued its objectives through the agreed process. It held out right to the end on a number of issues, requiring Mandela to use his persuasive skills
to end the deadlock and maintain the ANC’s positions. In a replay of the scenario in which Mandela and De Klerk had met to iron out sticking points in the final days of the negotiations before the elections, they now met to undo the logjams before the deadline for completing the draft of the new constitution. They worked hard, late into the night, alternating between De Klerk’s office in the Union Buildings and Mandela’s official residence in Pretoria. Some issues, which could not be completed within the required time, were left for the Constitutional Court’s certification process.25
Despite his steadfast leadership, Mandela always kept an open mind and would himself yield to persuasive argument. For instance, he would have preferred to keep the four existing provinces rather than split them into nine based on the economic regions defined by the Development Bank of Southern Africa.* Nonetheless, the ANC agreed to the division, albeit with slight modifications.
* * *
At the end of the two years allocated to drafting the new constitution, the negotiations, deadlocks and interventions were finally over. On 8 May 1996, heaving a collective sigh of relief, the Constitutional Assembly adopted the draft finalised in the wee hours of the morning by Parliament’s Constitutional Committee. Mandela welcomed it in an address that touched on both substance and process.
‘The brief seconds when the majority of honourable members quietly assented to the new basic law of the land have captured, in a fleeting moment, the centuries of history that the South African people have endured in search of a better future.
‘As one, you the representatives of the overwhelming majority of South Africans, have given voice to the yearning of millions.
‘And so it has come to pass that South Africa today undergoes her rebirth, cleansed of a horrible past, matured from a tentative beginning, and reaching to the future with confidence.
‘The nation teetered on a knife edge over the past few days, with reports of intractable deadlocks and an abyss in waiting. This was to be expected, given the difficult issues we were dealing with, and given the tight negotiating deadlines. But aren’t South Africans a wonderful people, to whom the words “deadlock” and “miracle” have come to nestle in comfortable proximity; and alternately, to grip the national imagination like a plague!
‘Be that as it may, we dare not, in the midst of the excitement of last-minute solutions, forget the magnitude of the achievement we celebrate today. For, beyond these issues, lies a fundamental sea change in South Africa’s body politic that this historic moment symbolises.
‘Long before the gruelling sessions of the final moments, it had been agreed that, once and for all, South Africa will have a democratic constitution based on that universal principle of democratic majority rule. Today, we formalise this consensus. As such, our nation takes the historic step beyond the transitory arrangements, which obliged its representatives, by dint of law, to work together across the racial and political divide.
‘Now it is universally acknowledged that unity and reconciliation are written in the hearts of millions of South Africans. They are an indelible principle of our founding pledge. They are the glowing fire of our new patriotism. They shall remain the condition for reconstruction and development, in as much as reconstruction and development will depend on unity and reconciliation.’
As was often the case, Mandela was alive to the reality of the average person on the street, whose strivings and contributions normally went unacknowledged while those in authority basked in rites of self-congratulation. He therefore commended ‘the active participation of the people in the drafting of the new constitution [which] … broke new ground in ways of engaging society in the process of legislation … [and which] reinvigorated civil society in a manner that no other process in recent times has done’.
He pointed out the presence in the public gallery of a cross section ‘of civil society, which made their inputs into the process: the legal fraternity, women, local communities, traditional structures, and leaders of sectors dealing with business, labour, land issues, the media, arts and culture, youth, the disabled, children’s rights, and many more.
‘Beyond those present are the millions who wrote letters and took part in public forums: from the policeman in a charge office in the furthest corner of the Northern Province, to prisoners getting together to discuss clauses, and to residents of Peddie in the Eastern Cape who continued with their meeting in pouring rain to debate the role of traditional leaders.’
Courteous to a fault, Mandela thanked them all – from the chairperson and his deputy, to the management committees in which all the parties were represented, and the staff – ‘for their dedication and drive to ensure that we attain this historic moment’. In the same vein, he also thanked the representatives of the international community who had seen the process through, adding that ‘your contributions and your force of example provided the fountain from which we drank with relish.’
The one principle that had influenced the ANC’s approach in the negotiations, Mandela stated, now departing from his written speech, was that, eventually, ‘there should be neither winners nor losers’, but that ‘South Africa as a whole must be the winner’. This was a commitment from the ANC to avoid any abuse of its majority that might reduce the other parties in the Government of National Unity to ‘mere rubber stamps’. Having said that, Mandela warned that ‘everybody will understand that we have a commitment and a mandate from the overwhelming majority of our people in this country to transform South Africa from an apartheid state to a non-racial state, to address the question of joblessness and homelessness, to build all the facilities that have been enjoyed for centuries by a tiny minority. We have that commitment and we are determined to ensure that all the people of South Africa live a dignified life in which there is no poverty, no illiteracy, no ignorance and no disease. That is our commitment. We are determined to honour that pledge, and anybody who tries to block us from attaining that objective of carrying out our mandate is like a voice crying out in the wilderness.’
He ended with a note of caution: ‘We are dealing with a situation in which, when one talks to Whites, they think that only Whites exist in this country, and they look at problems from the point of view of Whites. They forget about Blacks, namely Coloured, Africans and Indians. That is one side of the problem. However, we have another problem. When one talks to Africans, Coloureds and Indians, they make exactly the same mistake. They think that the Whites in this country do not exist. They think that we have brought about this transformation by defeating the White minority and that we’re dealing with a community that is now lying prostrate on the ground, begging for mercy, to whom we can dictate. Both tendencies are wrong. We want men and women who are committed to our mandate, but who can rise above their ethnic groups and think of South Africa as a whole.
‘We have now adopted this constitution … Every day I go to bed feeling strong and hopeful because I can see new leaders of thought emerging, leaders who are the hope of the future.’26
After Parliament had amended the few remaining inconsistencies in the newly created constitution, as directed by the Constitutional Court, President Mandela gave it legal force at a public signing ceremony at Sharpeville on 10 December 1996. The venue was chosen carefully, to symbolise the restoration of rights and dignity at the very scene of the Sharpeville Massacre, where on 21 March 1960, police shot and killed sixty-nine and wounded and maimed one hundred and seventy-six anti-pass demonstrators; the entry wounds in the backs of the victims showed that they had been in flight when shot.
* * *
In a country where, traditionally, the laws were crafted for the preservation of white interests, and those of the black majority were a mere afterthought, it was important that a new judiciary emerged out of the embers of the past. And this had to be prominent and vibrant in the execution of its mandate to win back a sceptical constituency. The establishment of a Judicial Service Commission (JSC), as human rights lawyer George Bizos has said, was a strong reaction to apartheid po
licies.*27 The pervasive wariness coupled with hostility to the law among the black population was evocative of a poem called ‘Justice’ by Langston Hughes, one of the luminaries of the Harlem Renaissance, which reads:
That Justice is a blind goddess
Is a thing to which we black are wise:
Her bandage hides two festering sores
That once perhaps were eyes.28
The judiciary, then, had to unburden itself of the baggage of the past and ensure that Lady Justice was truly impartial. In spite of the pressure to make unjust judgments, some of the officers of the court – white senior counsel practising at the Bar and appointed through ministerial fiat – ‘had a strong sense of justice’.29 These were among the candidates interviewed by the JSC, which subsequently provided President Mandela with a list from which he would select judges of the Constitutional Court. That selection was informed by the Constitution, which stipulated ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa’.30
Perhaps inevitably, though, the spectre of race hovered above every interview with prospective judges at the Civic Theatre in Johannesburg. But the creation of the JSC had laid the ground for the establishment of a constitutional state, which would rely on statutory bodies set up to protect democracy and ensure openness of debate and inclusivity. The effects were immediately noticeable. In his memoir, George Bizos recalls a moment of protest during the hearings: ‘Students from nearby Wits university gathered at the entrance with placards protesting against two professors of law who were candidates for the court, but who were involved in a dispute on the campus. Chief Justice Corbett met the students and received their memorandum, then invited them into the hearings. Without their posters, but won over by his non-confrontational manner, the students complied, entered the room in a dignified manner and quietly followed proceedings.’31
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