Constitution of South Africa

Based on Wikipedia: Constitution of South Africa

A Constitution Born From the Ashes of Apartheid

On December 18, 1996, Nelson Mandela signed what many legal scholars consider one of the most progressive constitutions ever written. But here's the remarkable thing: just two years earlier, the country had no universal suffrage. Black South Africans couldn't vote. The nation was emerging from decades of legalized racial segregation so brutal that the word "apartheid"—Afrikaans for "apartness"—became synonymous worldwide with institutionalized oppression.

The South African Constitution didn't just replace one government with another. It attempted something far more ambitious: to build, from scratch, a framework for a society that had never existed.

Five Constitutions in Less Than a Century

South Africa has been remarkably prolific in constitution-writing. The current document is the country's fifth since 1909, which tells you something about the turbulence of its political history.

The first constitution came from London, not Johannesburg. The South Africa Act of 1909 was passed by the British Parliament, stitching together four colonies—Cape Colony, Transvaal, Orange River Colony, and Natal—into a self-governing dominion called the Union of South Africa. This was a constitution written by and for the white minority, establishing a government that would exclude Black Africans from meaningful political participation for the next eight decades.

In 1961, South Africa cut its formal ties to the British Crown. The Republic of South Africa Constitution Act replaced the Queen with a State President, but the change was largely cosmetic. The power structure remained intact. What's striking is how this transformation was approved: through a referendum in which only white South Africans could vote. Even among whites, the measure barely passed, with voters in the Cape province and Natal registering strong opposition.

The 1983 constitution represented apartheid's attempt to modernize its image without abandoning its core principles. It created something called the Tricameral Parliament—three separate legislative chambers for Whites, Coloureds (people of mixed race), and Indians. Notice who's missing? Black South Africans, who made up the vast majority of the population, received no representation whatsoever. This constitution also merged the ceremonial State President and the executive Prime Minister into a single powerful executive presidency, a structural feature that South Africa retains to this day. It's actually quite rare globally—Botswana next door is one of the few other countries with a similar arrangement.

The Interim Solution

By the early 1990s, apartheid was crumbling. International sanctions, internal resistance, and the sheer unsustainability of the system had brought the white minority government to the negotiating table with the African National Congress, better known as the ANC, and other opposition groups.

But here's the problem with writing a constitution to end a conflict: who gets to write it?

The ANC, led by Nelson Mandela, wanted a democratically elected assembly to draft the new constitution. This made sense from their perspective—in a true democracy, they would likely win a majority and control the process. The ruling National Party, representing the white minority, feared exactly this outcome. They worried that their rights and interests wouldn't be protected if the majority wrote the rules. They proposed instead that the constitution be negotiated between the parties and then approved by referendum.

Neither side was entirely wrong.

Formal negotiations began in December 1991 at something grandly named the Convention for a Democratic South Africa, or CODESA. The parties eventually agreed on a clever compromise: they would first negotiate an interim constitution that would govern the transition period and establish the rules for electing a Constitutional Assembly. That assembly would then write the permanent constitution.

But even this compromise nearly fell apart. The sticking point? Mathematics. Specifically, what percentage of the Constitutional Assembly would need to agree before a new constitutional provision could be adopted? The National Party wanted a 75 percent threshold, which would effectively give them veto power over any provision they disliked. The ANC saw this as a backdoor way to preserve minority control. Negotiations collapsed in May 1992.

The Principle of Principles

When talks resumed in 1993 under the Multi-Party Negotiating Process, someone had a genuinely innovative idea. What if they created a set of "constitutional principles" that any future constitution would have to follow? This way, the elected Constitutional Assembly could write the details, but certain fundamental protections would be locked in from the start.

Think of it like giving an architect freedom to design a building, but specifying that it must have emergency exits, wheelchair access, and fire sprinklers. The details are flexible, but the safety features are non-negotiable.

The interim constitution of 1993 included 34 such principles. They mandated multiparty democracy with regular elections and universal adult suffrage. They required the constitution to be the supreme law, overriding any other legislation. They demanded a quasi-federal system rather than a centralized government. They prohibited racism and sexism. They protected all "universally accepted fundamental rights, freedoms and civil liberties." They required equality before the law, separation of powers, an independent judiciary, and protection for South Africa's diversity of languages and cultures.

Here's the enforcement mechanism that made this work: the newly established Constitutional Court would review the draft constitution. If it complied with the principles, it would become law. If it didn't, it would be sent back for revision. This meant the elected assembly had real power, but also real constraints.

Writing the Rules Together

The interim constitution established a two-house Parliament. The National Assembly had 400 members, elected through proportional representation—meaning voters chose parties, not individual candidates, and seats were distributed according to each party's share of the vote. The Senate had 90 members, with each of the nine provinces represented equally by ten senators chosen by their provincial legislatures.

The Constitutional Assembly consisted of both houses sitting together, a total of 490 people charged with writing the permanent constitution within two years. To adopt a new constitutional text, they needed two-thirds support—about 327 votes. For provisions affecting provincial government, they also needed two-thirds of senators specifically.

There was even a backup plan. If the assembly couldn't reach a two-thirds majority, they could adopt a constitution with a simple majority and then put it to a national referendum. It would pass if 60 percent of voters approved.

This backup was never needed, but its existence changed the negotiating dynamics. Neither side could simply stonewall, because the other side had a path forward without them.

The Bill of Rights

The heart of South Africa's constitution is its Bill of Rights, now Chapter Two of the document. It was largely written by two remarkable figures: Kader Asmal and Albie Sachs, both of whom had spent years in exile during apartheid.

What makes South Africa's Bill of Rights unusual is its ambition. Many constitutions focus primarily on negative rights—things the government cannot do to you, like imprisoning you without trial or censoring your speech. South Africa's constitution includes these, but goes further to include positive rights—things the government must provide for you.

Section 9 establishes equality before the law and prohibits discrimination on a remarkably comprehensive list of grounds: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth. Notice that sexual orientation is explicitly included—South Africa was among the first countries in the world to provide constitutional protection against discrimination on this basis.

Section 10 protects human dignity. This might sound abstract, but South African courts have interpreted it as a powerful right with concrete implications, informing decisions on everything from corporal punishment to social welfare.

Section 11 establishes the right to life. Section 12 protects freedom and security of the person, including protection against arbitrary detention, violence, torture, and cruel treatment, as well as bodily integrity and reproductive rights.

Section 13 prohibits slavery, servitude, and forced labor. Section 14 protects privacy, including protection against unreasonable search and seizure.

Sections 15 through 19 cover the classic civil liberties: freedom of thought and religion, freedom of speech and the press (with explicit exceptions for war propaganda, incitement to violence, and hate speech), freedom of assembly and protest, freedom of association, and voting rights.

Section 20 prevents any citizen from being stripped of citizenship—a provision with particular resonance in a country that had used denationalization as a tool of oppression.

Section 21 guarantees freedom of movement, including the right to leave South Africa, the right to a passport for citizens, and the right to enter the country.

Economic and Social Rights

This is where South Africa's constitution becomes genuinely distinctive.

Section 22 protects the right to choose a trade or profession. Section 23 establishes labor rights, including the right to form and join trade unions and the right to strike.

Section 24 creates an environmental right—the right to a healthy environment. Section 25 protects property rights, but with an important limitation: property can be expropriated for public purposes, with compensation. This provision reflects the reality that meaningful land reform would be impossible if the apartheid-era distribution of property were frozen in place.

Section 26 establishes a right to housing. Section 27 goes even further: it creates rights to food, water, health care, and social assistance. These aren't absolute entitlements—the government must "progressively realize" them "within available resources"—but they create legal obligations that courts can enforce.

Section 28 focuses on children's rights: the right to a name and nationality, the right to family care, the right to basic nutrition, shelter, and health services, protection from abuse and child labor, and special protections in the justice system.

Section 29 establishes a right to education, including a universal right to basic education.

Cultural and Community Rights

Sections 30 and 31 protect cultural and linguistic rights. In a country with 11 official languages—Zulu, Xhosa, Afrikaans, English, Sepedi, Tswana, Sesotho, Tsonga, Swazi, Venda, and Ndebele—these provisions matter enormously.

Section 32 creates a right of access to information, including government-held information. Section 33 requires that government administrative action be lawful, reasonable, and procedurally fair. Section 34 guarantees access to courts.

Section 35 protects the rights of arrested, detained, and accused persons: the right to remain silent, protection against self-incrimination, the right to legal counsel, the right to a fair trial, the presumption of innocence, and protection against being tried twice for the same offense or being convicted under a law that didn't exist when the act was committed.

Limiting Rights

No rights are absolute. Section 36 establishes how rights can be limited: only through laws of general application (not arbitrary government action), and only to the extent that the limitation is "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom."

This language matters. Courts must ask: Would this limitation be acceptable in a democracy that genuinely respects human dignity? This provides a principled framework for resolving the inevitable conflicts between rights and other social interests.

Section 37 addresses states of emergency—situations where normal constitutional protections might need to be suspended. But even here, the constitution places strict limits. Certain core rights can never be suspended. Emergency detainees retain fundamental protections. And the declaration of an emergency is itself subject to judicial review.

The Structure of Government

The constitution's first chapter establishes fundamental principles. South Africa is defined as "one, sovereign, democratic state" based on human rights, constitutional supremacy, the rule of law, and universal adult suffrage. The chapter specifies the country's flag, anthem, and official languages, and establishes principles for language policy in government.

Crucially, it includes a supremacy clause: all other law and all government action must conform to the constitution. In countries without such a clause, parliament can simply pass laws that override constitutional protections. In South Africa, the constitution stands above ordinary legislation.

A Constitution That Almost Wasn't

The Constitutional Assembly engaged in an unprecedented public participation campaign. Ordinary South Africans were invited to submit their views and suggestions. Millions participated.

As the two-year deadline approached, however, many of the most contentious issues were resolved in private negotiations between party leaders. On May 8, 1996, the assembly adopted a draft with 86 percent support—well above the required two-thirds threshold.

But they weren't done yet. Remember those 34 constitutional principles? The Constitutional Court now had to certify that the draft complied with them.

On September 6, 1996, the court refused certification.

This was not a technicality. The court identified multiple areas where the draft failed to meet the constitutional principles. It didn't adequately protect collective bargaining rights. It didn't provide for judicial review of ordinary legislation. It didn't sufficiently entrench fundamental rights. It failed to adequately safeguard the independence of the Public Protector and the Auditor-General. There were problems with local government provisions.

The assembly went back to work. On October 11, they adopted an amended text with numerous changes—some addressing the court's concerns, others improving the document in other ways. This revised version was submitted to the Constitutional Court, which certified it on December 4.

President Mandela signed the constitution on December 10, 1996—Human Rights Day. It was published in the Government Gazette on December 18. It came into effect on February 4, 1997, except for certain financial provisions that were delayed until January 1, 1998.

A Living Document

The constitution has been amended eighteen times since 1997, though its fundamental structure and values remain intact. It consists of a preamble, fourteen chapters containing 244 sections, and eight schedules of supplementary material.

The preamble speaks of healing the divisions of the past, establishing a society based on democratic values, social justice, and fundamental human rights, and laying the foundations for a democratic and open society in which government is based on the will of the people.

It's worth pausing on what this document represents. In 1990, Nelson Mandela was still in prison, where he had been for 27 years. By 1997, he was president, and the country had a constitution that guaranteed rights unimaginable a decade earlier. The transition was imperfect, as all transitions are. South Africa continues to struggle with the legacies of apartheid—economic inequality, inadequate service delivery, and persistent social divisions.

But the constitution provides a framework for addressing these challenges through democratic means. Courts regularly enforce its provisions against the government. Citizens invoke their rights and sometimes win. The document has become not just a legal text but a statement of national aspiration.

Many constitutions are mere formalities, ignored by the governments they're supposed to constrain. South Africa's has proven to be something different: a genuine foundation for a society still under construction.