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Constitutional Assembly Work Gains Speed

Mayibuye, Vol. 6, no. 3, July 1995

The process of writing the final constitution for South Africa is gaining speed in the Constitutional Assembly (CA), with some drafting already taking place. Negotiations on substantive constitutional issues have begun in earnest in the CA's Constitutional Committee (CC). The 46-member CC has a mandate to coordinate the work of the CA and to engage in some level of negotiations and decision-making.

Until now the main constitution-making work has been taking place in the six theme committees, which have been processing the 1.8-million written submissions; holding sectoral hearings; and attending public meetings on the constitution. As the theme committees wrap up their work, the Constitutional Committee is beginning to deliberate on the issues outlined by the theme committees.

Some discussion has already taken place on the Bill of Rights and the public service. Draft text is being prepared on the judiciary and the public protector, and should be discussed in the CC shortly.

Progress is also being made with the ANC's constitutional proposals. The most up-to-date proposals - reflecting the discussions which took place at the April national constitutional policy conference - have been published. They are provided in a summarised form on this page.

An ANC constitutional workshop will be held on 29-30 July 1995 to address issues which were not resolved by the national conference. The workshop will broaden consultation on these issues and, where possible, develop policy guidelines.

Among the issues to be discussed is the electoral system - whether there should be single or multi-member constituencies; how many MPs and senators there should be; and what the balance should be between proportional and constituency representatives.

Other unresolved issues relate to:

• functioning of the senate;
• national executive;
• motions of no confidence;
• cabinet members;
• provincial legislatures;
• provincial constitutions;
• local government;
• institutions of traditional leadership.

Among the approximately 200 people who will be attending the workshop will be representatives from ANC provincial structures, the Constitutional Assembly, the national constitutional commission, Youth League, Women's League, Cosatu, SACP and Sanco.

Provincial workshops or consultations would need to happen in preparation for the national workshop. Working groups at the level of the NEC have been formed to develop papers which can form the basis of discussion at the workshop.

Summary of ANC Constitutional Proposals

A summary of the ANC's constitutional proposals adopted by the ANC Constitutional Conference, 31 March-2 April 1995. The proposals, which will continue to be developed through discussion within the structures of the organisation, will be the basis of ANC input into the Constitutional Assembly.

Part 1 - Constituting the Republic of South Africa

The constitution's preamble would express a commitment to:

• an open society which protects the dignity and worth of every South African;
• a unified South Africa, founded on the sovereignty of the people of South Africa;
• overcoming the legacy of the past and preventing new forms of oppression;
• taking our place among the family of nations in Africa and the world.

The eleven official languages which are recognised in the Interim Constitution would be equally recognised in the final constitution. There would be room for national or provincial governments to choose certain languages as the official languages or for use in particular instances. Every person would have the right to communicate in the courts, in parliament and with the government in their own language.

All South Africans would be entitled to equal and full citizenship, which may be acquired by birth, decent, marriage or naturalisation. Citizenship could only be lost in circumstances set out by legislation.

Part 2 - Bill of Human Rights

The Bill of Rights will create a basis of guarantees which will ensure the elimination of oppression, discrimination, inequality and division. Not all rights can be properly set out in the constitution, and may need to be elaborated on through legislation.

The Bill of Human Rights needs to establish a balance between equality and liberty, protecting the dignity of individuals rather than their economic privileges. It needs also to maintain a balance between democratic government and the protection of individual liberty. In guaranteeing certain socio-economic rights the Bill should not give courts the power to set government priorities. It should establish, however, a floor of basic economic rights, which can be expanded through legislation or other parts of the constitution.

The Bill would include the right:

• to Freedom of association, speech and assembly, and to change government;
• to information and the free circulation of ideas and opinions;
• to a fair trial and the prohibition of cruel and unusual punishment, degrading treatment and forced labour;
• to live where one chooses and freedom of movement;
• to life and dignity;
• to privacy;
• to freedom of religion, language and culture;
• of workers to set up independent trade unions, to strike and to engage in collective bargaining;
• to be protected from discrimination, particularly on the grounds of ethnicity, language, race, birth, sexual orientation or disability;
• of children to be protected from neglect, abuse, exploitation or exposure to harm.

The right to free speech would not include the right to "hate speech", which would be regulated by legislation. Similarly, details regarding the right to free publication and the circulation of pornography should be regulated by legislation.

The right to life and dignity would not preclude the legislature from making laws providing for and regulating the right to an abortion. Discussion continues in the ANC on how abortion relates to reproductive and other human rights.

The right of employers to lock-out workers, which is contained in the Interim Constitution, would be removed from the final constitution.

The Bill would establish a system of just and secure property rights, which would include provision for access to land and for the redress of inequities. The Bill of Rights would also support the provision of homes, employment and services like electricity and water; affirm the right of all people to have access to basic education, health and welfare services; and direct that the environment be protected from desecration.

These rights can be limited or deviated from only in accordance with democratic tradition and international law and standards.

Part 3 - National Government

National Assembly

Parliament would consist of the National Assembly and Senate. For the National Assembly there would be a mixed system of representation, which allows for a combination of constituency-based representation and proportional representation. The national assembly would consist of between 300 and 400 members, however the ANC is still discussing how many representatives there should be. Also under discussion is whether there should be single or multi-member constituencies, and what the relative percentages should be of constituency and proportional representation.

Parliament should be elected at least every five years from a common voters roll, and on the basis of universal adult suffrage. The elections would be administered and supervised by an independent Electoral Commission. The commission would consist of 6 people elected by a 75% majority of the National Assembly.

The Parliamentary Committee system would be used to ensure executive accountability to an informed parliament. The committees would have the right to consider proposed legislation, to initiate new legislation and to conduct public inquiries within their area of jurisdiction.

Senate

Although the Senate would be a functioning component of the national legislature, it is dealt with in the ANC proposals in the section on provincial government. This is because of its central role in empowering provinces and in defining the relationship between national and provincial levels of government.

National Executive

Coalition cabinets (as in the Government of National Unity) will be based on voluntary political pacts only, and will not be required by the constitution. The President would be the head of state with both ceremonial and executive powers. They would be elected by the National Assembly, would have the same term of office as the assembly and would only be available for re-election once. They would appoint and dismiss Ministers and Deputy Ministers at their discretion.

The Deputy President would also be elected by the National Assembly, and would be the parliamentary leader of the majority party. Cabinet members would be accountable to Parliament and the President.

The President or Deputy President could be impeached on a resolution by a 2/3 majority of both houses on the grounds of a serious violation of the Constitution or other laws or inability to perform the functions of their office.

Parliament could pass a motion of no-confidence in the President and their Cabinet, in which event the President may either resign or call a general election.

Part 4 - Provincial and Local Government

The final constitution would create a balanced and co-operative provincial system through, on the one hand, provinces collaborating at a national level through the Senate, and on the other hand through the division of competencies between national and provincial levels. Provinces would in the main retain their present law-making competencies, while they would have a more substantial responsibility for exercising executive power and making supplementary laws.

Senate

The role and structure of the Senate would change from what it is presently to give provinces a more direct say in developing national legislation.

The functions of the Senate would be:

• to maintain a close relationship with the provincial governments and give expression to the administrative experience and needs of the provinces;
• have a significant say over National Assembly bills that deal with the exercise of powers and performance of provincial functions;
• bear co-responsibility for the Republic of South Africa as a whole regarding provincial interests.

The Senate would have between 50 and 100 members, appointed by the provincial executives or legislatures. The possibility of including local government representation in the Senate was favourably considered by the ANC Constitutional Conference.

The Senate would be able to block, approve or initiate laws dealing with provincial matters; and would have the right to review other laws. Through the Senate, provinces would participate in the drafting of the national budget, though it would have no powers to block financial bills.

Discussion is continuing on exactly how provinces would be represented in the Senate; the size, administration and functioning of the Senate; and the relationship between the Senate, the National Assembly and the Executive.

This proposal would have the twin effect of imposing national considerations upon provinces, while imposing provincial considerations on the national law-making process.

Provincial Government

Given the role of provinces in national law-making through the Senate, the provinces' law-making competencies remain very much the same as present (with the exclusion of policing, which was never properly part of Constitution).

In the event of inconsistency between national and provincial legislation, the national legislation will prevail only if national uniformity is desirable; it is necessary for the country to speak with a single voice; it deals with national economic policies; or if it provides for equality of opportunity. Where a provincial law doesn't deal with any of these matters, but deals with specific socio-economic or cultural needs of a province, it will prevail over a national law.

Provinces would also be responsible for developing the details of the framework legislation of the national government.

The executive powers of provinces - the essence of political governance - would be significantly expanded. The guiding criteria for the allocation of executive powers for national and provincial government would be accountability, effectivity and efficiency: the level at which the best results with the least government expenses can be obtained, would be the level of the allocation of the relevant power.

Local Government

Comprehensive framework legislation - including its powers, functions and structures - would be enacted at a national level. The implementation and supervision of the legislation would be delegated to provinces. The national legislation would:

• prescribe the areas of self-administration of local government;
• make provision for the allocation of mandatory functions;
• allow for the implementation of this legislation by provinces;
• confer the right upon local government to make by-laws.
• confer the necessary financial entitlements, authority and controls upon local government, subject to the provinces' right to supervise such controls.

Elections to local government shall take place on either a proportional or ward basis, or both.

Traditional authorities and cultural bodies

Provision would be made for an appropriate structure consisting of traditional leaders to be created by law, to advise parliament and provincial legislatures on matters relevant to customary law and the powers and functions of chiefs. The powers of traditional leaders would be exercised subject to the provisions of the constitution and other laws. The ANC continues to discuss detailed proposals on the form and function of such structures.

Part 5 - Judicial Authority

This chapter of the constitution would deal only with the structure of the courts, their respective jurisdictions and the appointment of the staff who administer them. Most of the matters relating to the functioning of the courts would be left to legislation. Proposals for the constitution include the following:

• The Constitutional Court would have final jurisdiction on all constitutional matters. It would have the power to decide which cases to hear, and would be able to take cases directly from lower courts without having to wait for an appeal process.
• The Appeal Court and the Supreme Court would have the power to declare national or provincial legislation valid. If, however, their opinion that national legislation is invalid, it needs to be referred to the Constitutional Court for a final decision. The matter of provincial divisions of the Supreme Court would be left to legislation.
• Magistrate's Courts should be able to deal with constitutional issues that arise from the Bill of Rights. They will not be able to rule, however, on whether legislation is constitutional or not.

Constitutional and Supreme Court judges would be appointed by a representative and transparent Judicial Service Commission. The commission would also play a role in the functioning of the courts, judicial training, law reform and complaints against judges.

Justice should be a national function, as opposed to the present 'federal' structure of the Attorney's General. The highest judicial executive officer should be the Attorney General - who may be a member of the Cabinet - and would be responsible for prosecuting offences in the name of the People of South Africa.

Public protector, Human Rights Commission, Commission on Gender Equality, Restitution of Land Rights

This section deals with institutions which need to be established to safeguard the rights enshrined in the Constitution. The Bill of Rights would outline the principles and procedures which will guide the restoration of land rights to those deprived of them by apartheid. A Land Claims Court Tribunal would be established to restore such rights.

There would be a Human Rights Commission to ensure the protection of human rights. A Public Protector would be charged with ensuring that government is free of corruption, rudeness and maladministration. These institutions would be appointed by parliament with a 2/3 majority.

There would be a commission to advance gender equality, which would consult women and conduct research on the situation of women.

The details of the functioning of each of these institutions would have to be dealt with in national legislation.

Part 6 - The Public Service

Public service

The final constitution would contain only a framework for the regulation of the public service. The public service would be:

• professional and career-orientated,
• broadly representative of the South African society,
• efficient, effective and responsive in terms of the delivery of service to the public,
• loyal to the government of the day,
• transparent and accountable to the public and parliament.

The rights of public sector workers at all levels of government, as well as the terms and conditions of service of its members, would be regulated by national labour law.

There would be an independent and impartial Public Service Commission which would perform a 'watchdog' role with regard to legislated standards and norms, compatible with democratic governance and accountability. The commission would be established by, and function according to, a national law.

The constitution would insist that no public official should be able to enrich themselves or anyone else through their position in a manner which is not fit and proper.

Security services

The constitution would establish certain fundamental principles which would bind all security services. Security institutions would not be able to act under their own authority, but on the instruction of parliament and the executive. The executive, however, would not be able to use the security services in violation of the constitution.

Security services would:

• not discriminate on the grounds of sex, race, sexual preference, religion or belief;
• reflect the composition of South African society;
• be non-partisan;
• reflect a reasonable balance between democratic transparency and secrecy.

Intelligence

Although the structure of the intelligence services would be set out in legislation, the constitution would prescribe that the president would be ultimately responsible for the intelligence services, and that a multi-party parliamentary oversight committee would be established.

National intelligence would be a function of the national government. Each intelligence service would be subject to independent civilian oversight by way of an inspectorate. There would be no private intelligence services.

National Defence Force

The national defence force would be primarily defensive in its structure and functions; members of the National Defence Force would not hold office in a political party; and the SANDF would comply with international customary law and treaties regarding armed conflict.

The defence force would uphold the constitution and would not be allowed to bypass parliament or the executive. The president would have the power to declare a state of national defence or war, subject to parliamentary confirmation.

The constitution would also provide for a military ombud person to deal with complaints of defence force members or from the public against the defence force.

SA Police Service

The South African Police Service would have national jurisdiction to prevent crime, investigate offences, maintain law and order and preserve the safety and security of the country. There would be one national police service, loyal to the national constitution, with structures devolved to the provinces. The president would appoint a National Commissioner of police who would exercise command of the service.

The national commissioner would appoint provincial commissioners after consultation with the relevant MECs. The MECs, together with the provincial commissioners, would be responsible for monitoring effective policing in provinces.

The establishment of municipal, metropolitan and tribal police would be left to legislation, but would not be precluded by the constitution.

Part 7 - Finance

The constitution should only outline the broad principles on independent institutions like the Financial and Fiscal Commission, the Reserve Bank and the Auditor-General. The details should be left to legislation.

The guiding principles on provincial financial and fiscal affairs would be that:

• the national-provincial system should address the inefficiencies and inequities of the apartheid legacy;
• national, provincial and local governments should have adequate financial resources to exercise their responsibilities effectively and efficiently;
• South Africa would have a joint fiscal system under the leadership of national government, and not a rigidly divided system.

The Constitution would provide that the bulk of revenue would be collected and apportioned at national level after participation by provincial and local levels of government.

Provinces would be entitled to an equitable share of national revenue, taking into account regional imbalances, and national obligations in respect of debt servicing. The Financial and Fiscal Commission (FFC) would be established to advise the government on the distribution of revenue to the provinces, and would have representation from the provinces. Provinces would be able to raise and collect taxes if authorised to do so by national legislation, after consideration by the FFC.