THE CONSTITUTIONAL HISTORY AND DEVELOPMENT OF SOUTH AFRICA
Nelson Mandela signed the 1996 Constitution of South Africa to make it the nation’s fundamental law officially.
By: Chernor Barrie
The Constitutional Development of South Africa has spanned decades, meted with several struggles surrounded by peaceful and non-peaceful negotiations.
Before we delve into the Constitutional Development of South Africa, we need to understand that there have been four different Constitutions in the Country. The first Constitution was adopted in 1910 after the British Government withdrew from the Country and handed it to the Whites residents to govern. The 1910 Constitution gave voting rights to the white minority but took away the same voting rights from the black majority, including the Indians and the Colored. The second Constitution in South Africa was adopted in 1961 by a white minority after a referendum was held to decide on transitioning the Country to Republic. The 1961 Constitution also took away the rights of the black majority, Indians, and the Colored but accorded all the rights to the white minority. The third Constitution adopted in 1983 created a separate parliament for the Whites, Indians, and Colored known as the ‘Tricameral Assembly.’ Of course, this Constitution also excluded the black from national governance and made them citizens of their homeland (specifically where they were born) instead of the whole Republic of South Africa. By these provisions in the Constitution, they have no rights outside their homeland, as the rights of Blacks are only confined within their homeland. The last Constitution, which was finally adopted in 1996, provided equality and the right to vote for everyone irrespective of race, color, ethnicity, gender, Etc. The making of that Constitution started in 1994 when several parties negotiated for an interim constitution to be adopted that would make way for the first democratically and inclusively held election in South Africa. A Constitutional Assembly was then set up with members from all political parties and pressure groups, including civil society groups, that gave birth to a final constitution which is now the supreme law (grundnorm) of South Africa.
For us to effectively discuss the constitutional history and development of South Africa, we would have to categorize it into two phases, namely:
1. The Constitutional Development of South Africa in the era of IndependenceIndependence
2. The Constitutional Development of South Africa as a Republic
THE CONSTITUTIONAL DEVELOPMENT OF SOUTH AFRICA IN THE ERA OF INDEPENDENCE (1899-1960)
In 1899, a war broke out between the Boers (Afrikaners) and British people, known as the ‘Anglo-Boer War. This led to the unification of four independent colonies controlled by the Boers: the Cape Colony, Transvaal, Orange Free State, and the Natal Colony. In 1902, a treaty known as the “Treaty of Vereeniging,” signed by the British and the Boers to end the Anglo-Boer War, paved the way for IndependenceIndependence and self-government in South Africa. In October 1908, white representatives from each colony held a national convention in Durban to deliberate, amongst other issues, the unification of the different political sects of these colonies into one Government. This deliberation by the white representatives in Durban led to the making of South Africa’s first Constitution in 1910, known as “The South Africa Act,” which created the Union of South Africa, passed by the British Parliament, which left out the interest of the Black majority despite the several petitions and protests raised by the Blacks. Two years later (in January 1912), the African National Congress (ANC), which became a vibrant force in the constitutional development of South Africa, was formed.
In 1931, the British Government decided to have limited interference in the governance system of their colonies. This led to the British Parliament’s creation of the Westminster Statute, which removed many constitutional limitations on all British Colonies worldwide. So, in 1934, South Africa, in turn, passed the ‘Status of Union Act’ to indicate that no Act passed by the British Parliament would be applicable in South Africa unless ratified by the Union’s Parliament. On 26th May 1948, a General Election was held, leading to the United Party (UP) defeat by the National Party (NP) by a popular vote. Only a few Indians and Colored were allowed to vote, and Blacks have been banned from participating in elections since the late 1930s. The streak of the National Party into governance created a policy that officially provided for an Apartheid system in South Africa.
At the time, the ANC was still seeking national cohesion, including a voice for the Black majority in the governance system of South Africa. On 26th June 1955, the ANC, in a Convention held in Kliptown, Soweto, adopted the Freedom Charter (similar to the Atlantic Charter of 1941). This became a crucial part of their quest for a political struggle to end the marginalization of the Blacks and call for an all-inclusive governance system in South Africa.
THE CONSTITUTIONAL DEVELOPMENT OF SOUTH AFRICA AS A REPUBLIC (1961-1996)
Despite the persistent struggles and negotiations by the ANC to create a level political and governance playing field for all irrespective of color, race, ethnicity, gender, Etc., the Indians, Colored, and mostly Blacks continued to face marginalization and arrest, including their leaders. In 1961, whites voted in a referendum to abolish the South Africa Act of 1909 to establish the Country as a Republic. This Constitution severed all ties with the former colony (Britain) to create complete self-governance for South Africa by making provision for the President to become the head of state instead of the Crown in Britain. The Constitution also discriminated against non-whites and provided little political participation for Indians and Colored while it provided the Blacks nothing.
In 1983, several reformations were made by the newly enacted Constitution, which provided for a shared political authority power by the President and cabinet ministers appointed from parliament. The Constitution also provided a tricameral assembly with Houses for Whites, Indians, and Coloreds, with no provision for the black majority in the Country.
However, pressures within and outside the Country led the National Party to lift the ban on political organizations, including ANC. The Government also released political prisoners, including Nelson Mandela, who was imprisoned for 27 years, dismantling the Apartheid system by repealing the Apartheid legislation after a referendum only for white voters was held on 17th June 1991, for which 60% voted for an end to the Apartheid system. A series of negotiations were held aftermath of the referendum by political organizations under the umbrella known as the Convention for a Democratic South Africa (CODESA). These negotiations under CODESA gave birth to a new South African constitution in 1993 that provided a Government of National Unity irrespective of race, gender, or color. As the interim Constitution that made leeway for the final Constitution in 1996, this Constitution also provided for a constituent assembly that promulgated the new Constitution in 1996. The Constitution was adopted in 1996 by the Constitutional Court to become the Country’s fundamental law. It also provided equality before the law and national cohesion. Above all, it helps reset the political landscape from decades of minority rule to transitioning to democratic rule.
Constitutional History of South Africa. Available at: https://constitutionnet.org/country/south-africa
History of the South African Constitution. Available At: https://www.sahistory.org.za/article/history-south-african-constitution-1910-1996