The South African Bill of Rights

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The question posed in Professor Wright's article1 is whether a Bill of Rights matters. His conclusion is that it does matter and that "anything that promotes moderation, liberty, and equal justice under law is highly desirable."2 A Bill of Rights certainly mattered in South Africa. In a unanimous opinion, the recently established Constitutional Court of South Africa, quoting from the preamble of the 1993 transitional Constitution,3 described South Africa's past as that of "a deeply divided society characterized by strife, conflict, untold suffering and injustice" which "generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge."4 A Bill of Rights was one of the essential tools without which the relatively peaceful transition from this history of racial oppression and apartheid to a nonracial democracy would not have been possible. Without some guarantee of protection for the rights of minorities, the previous ruling white minority government would not have relinquished power to an inevitably black-controlled majority government.

It was in that context that an extraordinary constitution-making process was established. This process gave birth to the South African Bill of Rights. The decision to incorporate a "full" Bill of Rights in the Constitution was not a difficult one for the African National Congress who, as long ago as 1955, adopted the Freedom Charter, which embodied the principle elements of a Bill of Rights. It was a different matter for the ruling National Party, which as recently as 1983, dismissed proposals for a Bill of Rights to be incorporated in the new Constitution of that year. However, after the banning of the African National Congress and other liberation organizations dramatically ceased in February 1990 and after the release of Nelson Mandela and other political prisoners, all of the major political parties, who joined to fashion a new constitution, agreed that any new constitution should contain such a Bill of Rights.5


I will only deal briefly with the difficult and lengthy negotiations conducted between the major political parties between 1990 and 1994 that led to the 1993 transitional Constitution and eventually to the 1996 Constitution.6 At the beginning of the process, the then minority, white-controlled government had control over all three organs of government, the civil service, and the security forces. More importantly, it had control over the financial and other resources of the state. Its desire and intent was to control the transition and to retain at least a veto power over the constitution-making process and, further, to maintain control over legislative and executive power for a substantial time in the future. This was quite unacceptable to those parties who represented the disenfranchised majority.7 They insisted upon a democratically elected Constitutional Assembly to draft the Constitution. In short, those parties representing the majority were not prepared to have a democratically elected government hamstrung by minority interests, nor to have an unelected government rule by decree. They demanded that not only the form of apartheid, but also its substance, be dismantled.

It took almost two years before sufficient consensus was reached to enable formal negotiations to begin. A forum known as the Convention for a Democratic South Africa (CODESA),8 consisting of most of the political parties and other interest groups, was constituted to carry out these negotiations. Any political party or grouping which could establish that it had substantial support was invited to join CODESA. CODESA established working groups to consider and advise on many issues that needed to be resolved.9 Each party to the negotiations was represented by two delegates and two advisors in each working group. …