How we Made the Constitution
Albie Sachs tells us the history of the South African Constitution.
African Roots of the Constitution
In 1906, a South African law student named Pixley Ka Seme who couldn’t receive higher education in South Africa, was sent to Columbia University in New York. And he made a statement saying that “either in South Africa we get a constitution, or we have a revolution.” The history of the 20th century in South Africa is in a sense the history of the tension between constitution and revolution. And how, in the end, we got a revolution through the constitution.
I was born in 1935. I went to university after World War II. It was an important period in the world for the defeat of Fascism and Nazism. It was the period in which challenges to imperialism and colonialism began, and the theme of human rights was becoming pretty important throughout the world. South Africa became something of a ‘test case’, because in South Africa the constitution overtly, directly enshrined racism as a profound, fundamental feature. When the British created the Union of South Africa in 1910, bringing together the two defeated Boer republics and the two existing British colonies, they expressly said that the Parliament created by the union could only have members who were white. So ‘whiteness’ was enshrined as a constitutional principle, and the effect of the constitution was to guarantee a certain amount of constitutional rights to the white minority; maybe 10–15% of the population. 85% of the population, the majority, were subjects. The law didn’t protect them. The law overtly oppressed and excluded them. It denied them franchise, threw them off the land, denied them freedom of movement, denied them dignity, and denied them access to all the beautiful spots: the beaches, the pleasure resorts, the hotels, hospitals and schools. All these things were expressly excluded through law, through a whites-only Parliament.
A legacy of the British Empire added to my generation’s resistance to the idea of constitutionalism: Britain did not have a written constitution. Common law applied. All power was given to Parliament and, being a racist parliament, this meant it was unconstrained in terms of the way it dealt with majority of South Africa’s people. So, there was an imperialist and racist tradition of ‘whites only’, coupled with a British legal tradition of giving Parliament supreme authority, not subject to any constitutional control. This meant that constitutionalism was not part and parcel of the thinking of the oppressed people; they couldn’t picture a constitution being a tool we could use to achieve liberation. A constitution was seen as a consequence of liberation, not a means to it. What’s more, since the people didn’t have the right to vote, the government wasn’t accountable to them. The people didn’t have rights. Leaders of the resistance were banned, restricted, or imprisoned like Nelson Mandela on Robben Island. People didn’t have rights, and they especially didn’t have the right to protest.
Adopting the Freedom Charter
Oliver Tambo set up the Constitutional Committee of the African National Congress (ANC) in 1985, while in exile. The aim of the committee was to transform a document called ‘The Freedom Charter’. The Freedom Charter was adopted at a place called Klip Town, in Johannesburg, in 1955. Something like 2,000 people came from all over the country to proclaim their vision of a new South Africa, saying “South Africa belongs to everyone who lives in it, black and white.” Attendees were predominantly black, joined by a few white people like myself. I was 20 years old then. We proclaimed that “no government can claim authority, unless based on the will of all the people”, and it set out ten basic themes of fundamental rights, of human rights, for all South Africans including the right to equality, human rights, restoration of land, rights to security and comfort. Before we could complete the adoption of these themes of the Freedom Charter by popular acclamation, police came in on horseback with semi-automatic rifles. They stopped the proceedings, every one of us had to give our names, and our leaders were put on trial for treason a year later. To demand equality in South Africa, to demand fundamental rights for all, was regarded as treason, and the case (known as The Treason Trials) went on for five years. Instead of the judiciary and institutions of the law being there to protect the rights of the people, they were all being used to oppress the people. And it was only when peaceful, non-violent protest became impossible that the armed struggle started. Mandela himself was a trained soldier. He would later lead resistance from the underground, before he was captured and spent 27 years in prison. But uMkhonto we Sizwe, the armed wing of the ANC and other militant groups resisted Apartheid, but not simply as a military struggle. They employed military tactics, along with popular mobilisation, underground resistance and international pressure; these are called the Four Pillars of the Struggle.
Laying the foundations of the Constitution in Exile in the 1980s
It was in Lusaka in the early 1980s that the foundation of the new South African constitutional order, which is so admired throughout the world, was laid. And the two key personalities, or if you like, the fundamental authors of the foundation of our Constitution, were Oliver Tambo and Pallo Jordan. Oliver Tambo then called himself the ‘acting President of the ANC’. Acting because the President of the ANC, Chief Albert Lutuli, who was elected at an ANC conference while it was still a legal organisation, was banished to his farm in a remote area of KwaZulu-Natal (he was later killed by a passing train in 1967). After this the ANC decided Tambo should be its leader, but he said, “I can only be the acting leader until, one day, we have a conference in South Africa to choose the new president.” He was a very modest person. In Lusaka he was leading the struggle from exile, linking up with underground units, gaining international support and developing policy. He was the key person in the creation of our new constitutional order here in South Africa.
Tambo received important intellectual support from Pallo Jordan who was the son of the first black African Professor at Cape Town University. His father, A. C. Jordan, was a specialist in Xhosa literature and language, and his mother, Phyllis Ntantala, was a strong intellectual in her own right. Pallo grew up in South Africa, but after his father died, his mother went to Detroit in the U.S. where Pallo became very involved in the civil rights movement, the anti-racist and the anti-imperialist struggle. He joined the ANC, went to London and finally to Lusaka. He became head of the Research Department of the ANC. In 1985, he was commissioned by Oliver Tambo to give a conceptual outline of what the ANC response should be to the various drafts for a South African constitution being put out by conservative think tanks from all over the world.
These global think tanks were saying, “Well, sooner or later the system of apartheid has to be changed. You can’t have only white people voting, and black people in subjection.” You can’t have what the regime in South Africa had created; rural labour reserve placed under tribal leadership, with pseudo-independent constitutions to divide the African people and to be essentially anti-democratic, ensuring that literally 87% of the land surface was permanently in white hands. Even the strongest supporters of apartheid accepted that that was unsustainable. So sympathisers of the white government were coming up with ideas for extending the franchise to black people, but protecting what they called the ‘white minority’. Their argument was that if you have black majority rule, then you have to have protection for the white minority.
Oliver Tambo said to Pallo Jordan “What is our response to that? We know that if the western powers in particular, who have strong economic interests in South Africa — in the mines, the minerals and industry in South Africa, big shareholdings and so on — and who have an affinity to identify with what they call their ‘kith and kin’ (white people) — if they are in control of the transformation of the country, they will preserve the status quo so that there will be votes for everybody, but the whites will continue to maintain control of the economy, of property. Basically all public life will remain untouched. What is the ANC’s answer to that?” Pallo Jordan went back into South African history. In particular, into the history of the ANC.
The Long History of the Bill of Rights
The ANC was formed on 8 January 1912 by Pixley Ka Seme. He had come back from Columbia University with his degree, and he said, “We African people must come together. We can’t fight separately as Zulu speakers, Sesotho speakers, Setswana speakers. We must fight together. We can’t fight separately as religious people, traditionalists, belonging to different faith communities, each fighting our own battles. We’ve all got to come together.” Then he got traditional leaders, leaders of faith communities, educators and people like himself to come together and meet in a town called Bloemfontein in the centre of South Africa, and they set up what became the African National Congress. In 1923 the ANC issued a document called a Bill of Rights, effectively saying “this is the South Africa we want.” Basically, it called for franchise, and it called for land for everybody. That was 1923.
In 1943, during World War II, when Roosevelt and Churchill issued the Atlantic Charter speaking about a post-WWII world and certain fundamental rights, the ANC in South Africa said, “There are many black men ‘up north’” as they used to say [intending the North of Africa] “fighting against Hitler, fighting against Mussolini. But when they come back home, they won’t have any rights.” It was actually quite shameful, when the soldiers came back. Black soldiers were given a bicycle and a small amount of money. White soldiers who came back were given scholarships to university. The ANC said, “We are now making African claims. We also want freedom in our own country.” And among the African claims was another document called the ‘Bill of Rights’, more extensive than that of 1923. So the Bill of Rights is part of the history of our freedom struggle, going back quite far.
In 1960, 69 South Africans were shot dead at Sharpeville, mostly running away from the police. After this massacre there was an enormous international and local reaction. The ANC was banned. The Pan Africanist Congress was banned. The Communist party had already been banned. Their leaders were all locked up, without trial, under emergency. And that was when the ANC decided to go underground.
In 1961 the white Prime Minister, Dr Hendrik Verwoerd, said he would declare South Africa a republic, cutting all ties with Britain and the British Crown. When I grew up as a youngster, we learned to sing ‘God Save the King’, as well as the South African national anthem, so there were still links with the British Crown. Mandela, who was in the underground, surfaced to say, “We African people are not against a republic. But we are against the white people in South Africa deciding the future constitutional status of our country. We demand from the government that you call a National Convention, representing the whole nation, to draft a new constitution for South Africa.” The Prime Minister was totally disrespectful: he responded only with police, terror and suppression. Mandela was captured, sent to prison, and the organisation remained banned. At the end of 1961 the first bombs went off, marking the start of the armed struggle. Now the theme was “we want a constitution, but we’re denied our right to claim a constitution, so we have to use violence [a Revolution] as part of our struggle to get change.”
1985 now, at an ANC conference in Kabwe (in the days of Northern Rhodesia it was called ‘Broken Hill’). I happened to be there. You can imagine for lawyers like myself who were called upon by Oliver Tambo to join the Constitutional Committee, how excited and thrilled we were. I remember Zambian troops surrounded us, otherwise helicopters could have come in, the South African military could’ve opened fire on us and destroyed the whole leadership, as well as middle-ranking people like myself of the ANC. Commandos were coming in from South Africa to attack the ANC, so the Zambian troops were around in case helicopters flew in with assassins to kill us. And what were we discussing? A Bill of Rights.
We were beginning to envisage the overthrowing of apartheid and we were thinking about “how will we live in the new South Africa?” We had to convert the Freedom Charter document from being a vision of a free South Africa into becoming an operational instrument of accountability, fair government and basic rights for everybody. This conference is where the programme of developing the armed struggle, the underground resistance, mass mobilisation and international support was developed. And immediately afterwards, the Constitutional Committee was set up because Oliver Tambo got a mandate from the conference to negotiate, if conditions were right.
So what does Pallo Jordan recommend to the national executive of the ANC? He recommends that if the whites are fearful of their future in a democratic South Africa where everyone has the vote, protection can well be given to them. But not because they’re white, nor because they’re minorities, but because they’re human beings. It must be the same protection that everybody gets, not special protection for whites as a minority. In many other countries, minorities are persecuted because they are minorities. In South Africa, the minority was the ‘majority’, and the majority the ‘minority’. The minority behaved like majorities found elsewhere. They dominated all the institutions of society. They owned the land. Their languages were the official languages, they dominated life in ways that in other societies the majority were the ones to do.
There was suppression, more violence. Mandela was captured and sent to jail for 27 years. The ANC was illegal for over 30 years. It was a criminal offence to carry even a picture of Mandela. Nobody was allowed to quote anything he said. But the resistance continued.
In any event, now the Constitutional Committee in Lusaka had to start thinking about the vision proposed by Pallo Jordan, accepted by Oliver Tambo. “We will have ‘one person; one vote’ in a united South Africa.” We were not fighting for an independent state for South Africa. South Africa, in terms of the world powers, was already independent. South Africa was one of the founding members of the United Nations, so we were independent. But the independence extended only to the white population. 85% of the people were not included in the sovereignty, in the independence. So, in a sense we had to break down ‘internal colonialism’, the internal racist domination, which treated the majority as a colonised people. Achieving democracy, equal rights in one country, became our equivalent of independence.
We achieved self-determination not through separation, but through democracy. Through equality and respect for human dignity. Through destroying all the barriers — those of exclusiveness — created by the formal, legal and economic system of Apartheid. In actual fact, the ANC project became one of achieving majority rule, as you get in any democratic country. We don’t vote on separate voters rolls as white people, Afrikaners and Zulu-speakers. Neither as people of mixed descent, coloured people, or people of Indian origin. No: we vote as human beings, as citizens. We have our rights to language, culture, religion, our traditions and history. Our Parliament is not based on forms of coalition or power-sharing between different racial groups. It’s constituted in terms of representatives of people who’ve been elected to Parliament by the nation. And in fact, we ended up using proportional representation at a national and regional level as the basis of our electoral system.
A New Constitutional Vision
By 1998, two years before Mandela was released, Oliver Tambo had helped develop a vision of a new constitutional order based on constitutional principles drafted by the Constitutional Committee he had set up. This vision was accepted by the national executive of the ANC. He was not the leader imposing his will. Rather, he was the leader bringing everybody together to distil a core consensus document that has major input and broad acceptance from within the struggle. We referred this vision and documentation to Nelson Mandela in prison through secret means; we referred it to our people in the underground, the resistance. We referred it to our international friends to Julius Nyerere, to Robert Mugabe, to Samora Machel. We referred it to Masire in Botswana at that stage. All of them were consulted, and out of that came a document that established the ANC’s preconditions for negotiations, which were: the withdrawal of the army from the townships, allowing free political activity, allowing prisoners to be released and the exiled to return. Those were the preconditions for starting negotiations in South Africa. This would make the country much freer, they wouldn’t be equal, but at least the people would be able to speak their minds.
It was at this stage that I introduced the theme of the three generations of human rights into our discourse. The first generation includes political and civil rights, fought for in the French Revolution and the American Revolution. The second generation are socioeconomic rights, with a very mixed provenance dating from the French Revolution of 1830, Bismarck (a military-type ruler in Germany), and afterwards to Social Democratic countries: Sweden, Norway, Denmark in Northern Europe, the Labour Party in Britain. And of course, the Russian Revolution in 1917. These all speak about the importance of the rights to housing, health and education, as fundamental rights. The third generation of human rights would be rights to a clean environment, to peace and to development.
We really put this on the map in South Africa, ensuring that our Bill of Rights was not a conservative instrument to protect the status quo. Rather, the Bill of Rights would be an emancipatory instrument that wouldn’t stop at the front door of a woman being abused in the home; nor at the farm gates if workers were being abused by the farm owners; nor at the entrance to the mine if miners were being abused. It didn’t stop at the enclaves of white privilege, but applied throughout the whole of the country. That was the emancipatory vision of the Bill of Rights which we had to fight for in the process of creating a new constitution.
The Harare Declaration — Support from African states
Tambo was concerned that if we, the ANC, make it our demand, it’ll be rejected. We would like the Organisation of African Unity (OAU) to make it their demand.” And Nyerere gave his input, Mugabe gave his input, Samora Machel gave his input — they all gave input. My mistake, Machel was dead at that stage, so it must have been Chissano. Tambo with Pallo Jordan and a few others were given a small Cessna plane to fly from one African state to the other, to persuade the leaders to accept that declaration. And it was very testing to his health. He ended up in Harare to speak to Mugabe, the last one, and he had a stroke from which he never fully recovered. And Mugabe said, “The OAU is meeting in Harare, and we will call it the ‘Harare Declaration’.” This was late 1988.
The OAU would take it to the United Nations, so it was not just African people demanding it but the whole of the United Nations. One of the preconditions was that we South Africans must be able to negotiate our constitution ourselves. We didn’t want to leave it to the west to command the process, and there were very good reasons for that. The constitution negotiated at Lancaster House by the British were cobbled together by British lawyers to preserve the interests of Britain and of the ruling elites with whom they had collaborated in the colonies. So, the Zimbabwean Constitution gave Zimbabwe independence, ended the war, but it restricted any transfer of land from whites to blacks for ten years; it gave 20% of the seats in Parliament to whites voting as whites, and it was a disaster. People hated their Constitution. It wasn’t a mechanism for emancipation; the constitution was something imposed upon them, in the interest of the whites. We didn’t want anything like that in South Africa. The Harare Declaration then became the foundation because the United Nations adopted it by acclamation, and even people like Margaret Thatcher were compelled to demand the release of Nelson Mandela and others, after having called him a terrorist for many years.
It wasn’t the fall of the Berlin Wall; it had nothing to do with that. The Berlin Wall fell in November in 1989. The Constitutional Committee had already drafted our fundamental features in 1986, accepted by the national executive of the ANC in 1987, dispersed for early consultation in early 1988. It was our own determination as South Africans, the vision of the country we wanted, that we felt was right. We don’t feel it was the collapse of the Berlin Wall or the collapse of Soviet support that dictated the kind of constitutional settlement we got in South Africa. We know what we experienced, what we fought for, what we struggled for.
The beginning of negotiations
After the Harare Declaration, the release of Mandela and the return of the exiles, we start negotiations for a new constitution. It took us the whole of 1990 and most of 1991, having what we call ‘Talks about Talks’, that is laying the foundations for negotiations, and ended up with what was called ‘CODESA’: Convention for a Democratic South Africa, which started in December 1991. It was based on representation from all governmental authorities in South Africa, which meant the racist government itself and the Bantustans they’d set up, being represented. And representation of all political parties. Some were racist. There was one opposition party in the white Parliament that had played an important role in exposing apartheid. There was the ANC. The one grouping at CODESA was government/pro-government groupings. The National Party which was the government party and some of the so-called ‘independent homeland states’ and some also called the ‘Bantustan’ States supporting the racist government.
Inside South Africa we had these bantustans that were pseudo-states, created under Apartheid to say “black people have the vote”. They were represented there too at CODESA. We had the ANC, the Natal Indian Congress, the Transvaal Indian Congress, which had both been set up originally by Gandhi. We had the South African Communist party. We had the Pan-Africanist Congress, and some other small political parties, all sitting around a table. We had to work out modalities for taking decisions, all of them quite intricate.
A dramatic and violent transition
There were some very stressful, hectic moments: at one stage an armoured car crashed into the negotiating chamber with extreme right-wing Afrikaners in it. At another point, there was low-grade civil war in KwaZulu-Natal: fighting between ANC combatants from uMkhonto we Sizwe and the Inkatha Freedom Party combatants, trained and organised by security forces close to the government. We had a crisis with the generals under apartheid who said that they were defending the democratic process, but if they didn’t get an amnesty they would just leave the country. It was asking too much for them to help achieve democracy in South Africa and for them to go to jail, while the political leaders who had given them commands, roamed free. We had to deal with that. The Truth and Reconciliation Commission (TRC) came out of that. We had other crises: in one of the Bantustans called Bophuthatswana15 there was a mutiny, rebellion. Forces came in from outside. Lots of bloodshed. And eventually, Bophuthatswana participated in the whole process. All of these crises had to be overcome and we did so by having a two-stage constitution-making process.
The regime wanted CODESA to draft the Constitution and put it to a referendum: take it or leave it. The ANC insisted on general elections to create a constituent assembly which would draft the Constitution. The regime said then that it would be “handing power over to the black people, and they will do to us what we did to them.” So it was agreed that we would agree to certain principles in advance that would provide guarantees to everyone in South Africa against future abuse; that we would have multi-party democracy; that we would have a separation of powers; that we would have universally accepted human rights; that we would have different spheres of government, at national, provincial and local level and so on. All of these principles were agreed to in advance, and they would be binding on the popularly elected Constitutional Assembly. We didn’t call it a ‘Constituent Assembly’ — we called in a ‘Constitutional Assembly’.
Building a new country
It was the Constitutional Court that would be created as the top court in the country to ensure basic rights were being protected while the new Constitution was being drafted, and to ensure that the whole judiciary now embodied the values of constitutionalism and democracy. There would be voting by proportional representation, at national and provincial level, to see to it that even the smallest groups would be present in the constitution-making body. We wanted even tiny parties to be there, and a two-thirds majority would be required by the Constitutional Assembly. These were the guarantees that got us a two-stage process of constitution-making, and which brought us the wonderful elections on 27 April 1994. Blacks and whites voting together, in the same queue, standing for hours to vote as equals for the first time. That got us Mandela, who had been in jail for 27 years: the first democratically elected president.
Now the democratically elected constitutional assembly had two years in which to adopt the final text of the Constitution. The Parliament, for purposes of constitution-making, converted into a Constitutional Assembly to draft the new Constitution. “What’s your position on capital punishment? What’s your position on issues like unitary or federal state? What’s your position on language rights and cultural rights? On freedom of religion? Freedom of speech?” All of these issues were discussed with the people, and input was given.
Eventually, after two years, a document was adopted that’s been called by many people “the most progressive constitution in the world.” It got a 83% majority; only about 3% against, and maybe 10% abstaining. Included in its progressive qualities were environmental rights; the first constitution in the world to expressly constitutionalise the right to a clean environment. It was the first constitution in the world to include sexual orientation in the list of forbidden grounds of unlawful discrimination. Disability, gender, sexual orientation, race, language, culture, birth, marital status — all included. It included very strong rights against gender-based violence, not in a clause of rights for women, but under freedom in the Freedom Clause. It included rights to make decisions on reproduction as a right to freedom. Not women’s rights, but rights to freedom. A very progressive Constitution in many different ways.
It included the rule of law as a fundamental, foundational value. It included non-racism and non-sexism as fundamental values. It is, to this day, possibly the only constitution in the world that includes non-sexism as a constitutional requirement, a foundational, constitutional requirement.
Albert “Albie” Louis Sachs (born 30 January 1935) is an activist and a former judge on the Constitutional Court of South Africa. Sachs was a lawyer supporting Oliver Tambo on the Constitutional Committee of the ANC. After having his arm blown off by a car-bomb in Mozambique due to his opposition to apartheid, he fled to the United States but continued to support the resistance in exile. He later returned to South Africa and currently resides in Cape Town. Sachs was appointed to the Constitutional Court of South Africa by Nelson Mandela in 1994.
This article was originally published in March 2020 in Folios n.2 “We, The People”, the Moleskine Foundation cultural publication.