The legitimacy of the Constitution of 1996


In the run up to the general election of 2019 and in the discourse and discussions relating to the controversial issue of expropriation of land without compensation and the proposed amendment of section 25 of the Constitution political parties on the extreme left of the political spectrum, such as the EFF and BFLF, are calling into question the legitimacy of the extant Constitution and have gone as far as accusing Nelson Mandela and other liberation leaders as being ‘sell outs’.

According reports in the media both President Ramaphosa and his predecessor Jacob Zuma defended the late erstwhile president Nelson Mandela from populist allegations and accusations that he was a sell out during the Codesa and subsequent negotiations that resulted in a political settlement from which flowed the Interim and final Constitutions (IOL News-Politics 19/7/2018, ANA Reporter).

As explained above, such accusations are being made by populist commentators and politicians, such as Julius Malema and others on the extreme left of the political spectrum. They are based on ignorance of the historical record and are a patent insult to a very illustrious and courageous statesman, who together with, inter alia, Walter Sisulu, Oliver Tambo, Govan Mbeki and Albi Sacks of collective leadership of the ANC, who made an inordinate sacrifice to bring about a non-racial constitutional dispensation involving an enforceable Bill of Rights.

It is necessary to consider the actual historical record. The 1996 Constitution was drafted by the Constitutional Assembly (CA), a body made up by the members of the National Assembly and the erstwhile Senate. These persons were elected or appointed in terms of the Interim Constitution of 1994, following the first democratic election 27 April 1994. This election gave them the democratic legitimacy to draft the final Constitution as elected representatives of the nation. In this election the ANC won with a majority of about 66%. The vast majority of the ANC consisted of African persons. 

The draft Constitution produced by the CA in compliance with the Constitutional Principles set out in the Interim Constitution. For this purpose the draft was referred to the Constitutional Court. By virtue of a jurisprudentially unique and comprehensive judgment of this Court, delivered on the 6 September 1996, the text was referred back to the CA for reconsideration because it did not fully comply in every respect with these principles. The text was subsequently amended to comply. The drafting and adoption of the Constitution by the CA was intended to ensure that South Africa was governed in a democratic manner by a body that was legitimate in the eyes of all South Africans. 

To this end, the process of drafting the text involved thousands of South Africans, in the largest public participation programme ever undertaken. The legitimacy of the Constitution was enhanced by the fact that the CA received more than two million submissions from ordinary members of the public who commented and made suggestions in relation to the working draft that was published in 1995.

After a period of nearly two years of intensive consultation and negotiation, the political parties represented in the CA formulated and adopted a text which constituted a synthesis of the ideas drawn from political parties, ordinary citizens and civil society organisations that represented the cumulative wisdom and experience of the South African people and was adopted by the overwhelming majority of the CA (87%).On 10th December 1996 the Constitutional Court certified that the amended draft complied in every respect with the constitutional principles. In a very real way this was a Constitution sprung from the native soil of South Africa, which constitutional lawyers call an autochthonous or indigenous Constitution. From the above the Constitution’s pedigree of legitimacy cannot be doubted.

The South African Constitution is a dynamic instrument that makes provision for transformation. It has a progressive Bill of Rights that includes both civil and political rights as well as socio-economic rights, such the right of access to health, housing and education as well as affirmative action for advantage of people of colour. Although the Constitutional Court has given expression to these rights in many famous cases and in a period of more than 20 years and our society has make progress as a democracy, very much still needs to be done in relation to economic inequality, poverty and unemployment. South Africa is unfortunately one of the most unequal societies in the world and more than 20 million persons, mainly African people live in dire poverty. This is however not the fault of the Constitution and its Bill of Rights.

South Africa requires inspired and competent political leadership in order to address the problems of inequality, poverty and employment in cogent manner. Unfortunately during the nearly 10 years of the Zuma Presidency there was corruption, mal-administration and ‘state-capture’ on an unprecedented scale. It is the inordinately challenging task of the new Ramaphosa administration to use the transformation potential of the Constitution to bring about fundamental changes using inspired political leadership to address these problems that blight our society and provide government characterised by integrity and competence. 

South Africa is a country of infinite potential in both natural and human resources which are capable of being used to bring about the transformation that is so urgently required. In this regard our political leadership must seize the opportunity to make this country one in which social justice and economic equality prevails for all our people.  

George Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.