DEMOCRATIC CONSTITUTION MAKING: THE SOUTH AFRICAN EXPERIENCE
By Vivien Hart
South Africa's constitutional process was one of its first truly national endeavors, encouraging participation from all sectors of the country's once-divided society. The author pays special attention to the methods and procedures by which participation was encouraged and the time required to reach agreement on a new constitution. This article has been excerpted from Special Report: Democratic Constitution Making, a publication of the United States Institute of Peace
DEVELOPING NATIONS in Africa and elsewhere are experimenting with new structures and forms of participation in an attempt to develop an open process that places initiative in the hands of citizens and creates a constitutional conversation. In many cases, rather than working within the framework of an existing body of procedures and precedents, these nations are starting with a clean slate.
The South African Constitution of 1996, for example, is widely regarded as a model constitutional text. Likewise, the process by which it was made has been hailed as a key part of the successful transition from the oppression of apartheid to a democratic society. The following features of the South African process illustrate the context and challenges of democratic constitution making and set the context for evaluating its general potential and problems.
 |
South African President Nelson Mandela, center, flanked by his two deputy presidents, Thabo Mbeki, left and F.W. de Klerk, right, celebrate the new constitution, May 8, 1996. |
NEGOTIATIONS ON PROCESS
In all, it took seven years, from 1989 to 1996, to achieve the final constitution. Almost five years elapsed between the first meeting between African National Congress leader Nelson Mandela and Prime Minister P. W. Botha in 1989 and agreement on an interim constitution and the first non-racial election in 1994. Throughout these years, outbreaks of violence threatened the process.
In a key phase from 1990 to 1994, agreements on process were negotiated in private and public sessions between former adversaries. These included an agreement to negotiate about constitutional negotiations; prolonged arguments about the form the constitution-making process should take; and 1993 agreements on procedures and, ultimately, agreement on an interim constitution including principles and procedures binding on the final constitution-making process.
In April 1994, the first non-racial election for parliament was held with a voter turnout of about 86 percent. The following month, the new parliament met for the first time as the Constitutional Assembly.
In the mid 1990s, the South African process became a full-scale demonstration of participatory constitution making. Until that time, the public had had no direct role in constitution making. Now their elected representatives in the assembly reached out to educate them and invite their views. The educational effort included a media and advertising campaign using newspapers, radio and television, billboards, and the sides of buses; an assembly newspaper with a circulation of 160,000; cartoons; a Web site; and public meetings; together these efforts reached an estimated 73 percent of the population. From 1994 through 1996, the Constitutional Assembly received two million submissions from individuals, advocacy groups, professional associations, and other interests.
In the final phase, in tandem with the participatory campaign, committees of the assembly drafted a new constitution within the parameters attached to the 1994 interim constitution; a first working draft was published in November 1995, leaving aside 68 issues for further work; a revised draft was produced the following year; and a final text in May 1996. From July through September 1996, the Constitutional Court reviewed the text; the court then returned the text to the assembly for amendments, which were made in October. In November, the court gave its final certification and in December, President Mandela signed the constitution into law.
ESTABLISHING DIALOGUE AND TRUST
The South African process took time. It was phased. It benefited from an interim constitution that allowed the dialogue of transition to continue. Participation was invited at a chosen moment rather than throughout and then creativity and resources were committed to facilitating a serious dialogue. Trust that the outcome would be consistent with the 1994 democratic principles was created by the continuation of the conversation between judicial certification and parliamentary confirmation. Groups including women and traditional authorities found voice and access and made sure that their interests were taken into account. Also important was the fact that South Africa had a pre-existing civil society that could be drawn in as a counterweight to the entrenched racial and partisan divisions of politics. Other important factors that sustained the formal process include patience, especially in the face of violence; a willingness by all concerned to take some bold steps; and a combination of negotiation in private over some of the most difficult issues and unprecedented public involvement.
Only a considerable commitment of time and resources makes genuine public participation possible. Even if we count South Africa's starting point as the moment of agreement in 1991 to negotiate the process, constitution making in that highly successful case took at least five years. Many would argue that the process was underway at least two years before that, from the moment leaders began tentative approaches across the racial divide; clearly, part of the process is the building of an adequate level of trust between elites and among the general public to enable a constitutional conversation to take place at all.
Modes of participation vary considerably-there is no one model appropriate to all nations. South Africa elected a parliament that acted as the Constitutional Assembly. South Africa sought out public opinion through a variety of channels, used media imaginatively, and devised materials to make constitutional issues accessible in multiple languages.
But the public was not involved equally at all stages of the South African and other processes. While South Africans could follow the progress of public negotiations up to 1994, some absolutely critical deadlocks along the way were resolved in secret meetings. The entire public was first invited to take part in the 1994 election, the most conventional form of participation. But in the South African context, where most of the population had previously been excluded on racial grounds, this was a momentous act. Approximately 86 percent of the population voted. The number of voters, as well as the number of submissions to the Constitutional Assembly, confirm that the public will participate where they see the issues and outcomes as important.
Vivien Hart is a research professor at the University of Sussex, where she previously served - as the director of the University's Cunliffe Centre for the Study of Constitutionalism and National Identity, an international research network involving scholars and activists from the United Kingdom, Europe, United States, Canada, South Africa, Sri Lanka, and Fiji. Her book, Women Making Constitutions, edited with Alexandra Dobrowolsky, was released in November, 2003. Hart was a senior fellow in the U.S. Institute of Peace's Jennings Randolph Program for International Peace in 2002-2003.
The opinions expressed in this article are those of the author and do not necessarily reflect the views or policies of the U.S. government.