Constitutional history of South Africa

ConstitutionNet Newsletter

Stay informed on our latest news!

Manage my subscriptions

@ConstitutionNet on Twitter

ConstitutionNet

International assistance

The role of international or external support for national processes of constitution building has an instrumental impact on the design of these processes and the institutional choices that ultimately are framed in constitutions.

Training programme

The new Constitution Builders ACCESS Resource – is an interactive training tool that reinforces sharing experiences as a means to building the capacity of practitioners to solve some of the dilemmas that they face in constitution building.

Handbook

The Handbook reviews and discusses some of the institutional and procedural design choices that practitioners have recently considered during contemporary constitution building.

Issue papers

Selected issues are considered at length based on emerging and ongoing dialogues among practitioners and specialists.

Multimedia

A collection of multimedia resources from and about constitution-building processes.

Web links

The web links provide a comprehensive list of relevant organizations and partners working in constitution building and related subjects.

Located in the southern tip of the continent, South Africa is bordered in the northwestern region by the Orange River that separates it from Namibia, in the eastern region by the Limpopo River that separates it from Zimbabwe and Southeastern Botswana. It is Africa’s most multiracial nation comprising peoples of African, Asian and European descent. It has 11 official languages and a population of over 49 million people. Population data compiled in 2010, according to racial categories, put blacks at 79.4%, Whites at 9.2%, Coloured at 8.8%, and Indian or Asian at 2.6%. It is Africa’s largest economy and most industrialized nation.

Political system and history

The territory of present day South Africa was formerly a British colony until its accession to independence, as a self governing dominion within the British Commonwealth in 1910. This was shortly after the British Parliament passed the South Africa Act (1909), merging the four British dependencies of Cape Colony, Orange Free State, Natal and Transvaal. Although the objective of the British in merging the dependencies was to unite South Africa and consolidate its imperialist interests, what resulted was a divided South Africa, with blacks excluded from political participation. This development fuelled discontent and racial conflict that would define the country's post colonial and twentieth century history. The practice of eclusionary politics was later institutionalised under the system of apartheid – an extreme form of legal segregation based on race, and enforced by the Nationalist Party government between 1948 and 1994. The year 1994 saw a sudden end to white minority rule as international pressure, democratic winds of change blowing across Africa, and an increasingly unmanageable and violent revolutionary forces within South Africa forced the Nationalist Party (NP) government of President F. W. de Klerk to introduce reforms. These reforms would result in the establishment of a constitutional democracy headed by the first non white president - Nelson Mandela - following his African National Congress (ANC)’s overwhelming win in the first multiracial elections in April 1994.

Constitutional history and development

South Africa’s constitutional history and development can be divided into three key phases: the period between 1909 and 1910, the period 1910 and 1990 and finally the period 1990 to present

The Independence Constitutional Development

The South Africa Act of 1909

The period 1909 to 1910 covers the independence period and is essentially the genesis of the constitutional development of South Africa. This period was characterised by the enactment of the South Africa Act by the British Parliament, establishing an independent Union of South Africa comprising the territories of Cape Colony, Orange Free State, Natal and Transvaal. In reality, this was South Africa’s Independence constitution.

The Post independence Constitutional Development

The 1931 Statute of Westminster and the Status of Union Act of 1934

The South Africa Act of 1909 only granted independence to South Africa to the extent that British Crown would continue to be a ceremonial head of state represented on the ground by a Governor General. Consequently, certain Acts of the British Parliament continued to be applicable in South Africa. Independence was therefore limited only to matters of internal affairs. In 1931 however, the British Parliament enacted the Statute of Westminster which removed many constitutional limitations on all British dominions reducing the role and presence of the British Crown. Following this Statute, the South African Parliament passed the Status of Union Act of 1934 to the effect that no act of the British parliament could apply to South Africa unless endorsed by the Union parliament.

The Constitution of 1961

In 1960, following the drafting of a new constitution, South Africa’s white voters voted in a constitutional referendum to abolish the Union of South Africa created by the South Africa Act of 1909. In its stead, a Republic a South Africa was established. Although premised on the South Africa Act, the 1961 Constitution severed all ties with the British Empire as the state president replaced the Crown and the Governor General. All references to "king," "queen," and "crown” were replaced with "state."

Key features provided by the new constitution were a president, a prime minister, and an executive council (cabinet), based in Pretoria, a bicameral legislature in Cape Town and an independent judiciary sitting in Bloemfontein.

The constitution maintained white dominance over political life through a discriminatory electoral structure that disenfranchised non whites. A Bantu Authorities Act in 1951 restricted the political participation of blacks to the homelands called Bantustan. However, selective reforms in 1964 and 1968 opened some political space to Asians and Coloureds by allowing limited political participation in ethnic affairs. Accordingly, a Coloured Persons' Representative Council was created in 1964 and a South African Indian Council established in 1968.

The Constitution of 1983

In 1983, a series of legislative reforms resulted in the enactment of a new constitution and a reconfiguration of state institutions and power. These reforms were implemented through the Constitution of the Republic of South Africa Act of 1983. It provided for an executive authority that was shared amongst an executive president elected for a 5 year term, a cabinet appointed from the parliament and a Council of ministers also chosen from parliament. It established a tricameral parliament with a House of Assembly for whites, a House of Representatives for Coloureds and a House of Delegates for Indians. An 88 member Electoral College system was established for electing the president consisting of 50 white electors, 25 Coloured and 13 Indian electors to be chosen by majority vote from their respective Houses.

The three-chambered parliament was based on a fundamental premise of the 1983 constitution, the distinction between a racial community's "own" affairs (encompassing education, health, housing, social welfare, local government, and some aspects of agriculture), and "general" affairs (encompassing defense, finance, foreign policy, justice, law and order, transport, commerce and industry, manpower, internal affairs, and overall agricultural policy). Thus, legislation "affecting the interests" of one community was deliberated upon by the appropriate house, but legislation on "general affairs" of importance to all races was handled by all three houses of parliament. Disagreements among houses of parliament on specific legislation could be resolved by the President's Council, giving the NP-dominated House of Assembly substantial weight in determining the outcome of all legislative debates. The president signed all legislation, and also exercised administrative responsibility for black affairs.

The Constitution also provided for a President’s Council on which he relied for advice on urgent matters and for resolution of differences among houses of parliament. The Council comprised twenty members from the House of Assembly, ten from the House of Representatives, five from the House of Delegates, fifteen nominated by the president, and ten nominated by opposition party leaders. This constitution lasted until the demise of apartheid in 1993

Constitutional development in the 1990s

In 1990, mounting international and domestic pressure, and, growing evidence and realization among the white political class that the apartheid system was unsustainable, forced the NP towards dismantling the system. The first step was the lifting of the ban on political organizations - in particular the African National Congress (ANC) and, the release of veteran opposition leader, Nelson Mandela, after 27 years in prison. This was followed by a repeal of the apartheid legislation. Between these developments and 1993 and against a backdrop of intense political violence, the NP, the ANC and other political organizations, engaged in a series of negotiations under the umbrella of the Convention for a Democratic South Africa (CODESA). These negotiations eventually led to the adoption of an interim constitution to govern the transition to a new South Africa. This came after an all white referendum in which over 60 percent of whites voted in favour of absolute reforms.

The Interim Constitution of 1993

Promulgated by the Constitution of South Africa Act of 1993, it provided for a Government of National Unity, a five-year transition. It also provided for a Constituent Assembly consisting of a combined Senate and National Assembly to draft the a new constitution. It is under the terms of this constitution that Mandela would become president in May 1994. This constitution remained in force until 1996 when the current constitution of South Africa was adopted

The Constitution of 1996

Promulgated by the Constitution of South Africa Act, following its adoption in an overwhelming yes vote in the constitutional referendum, it has been described as a masterpiece of post conflict constitutional engineering in the post cold war era. Designed in the context of South Africa’s transition to democratic rule which started with the release of Mandela in February 1990, the constitution completely reconfigured South Africa’s political institutions, injecting new dynamics and transformative changes across its political landscape. It effectively ended decades of oppressive white minority rule. The constitution has since been amended sixteen times but remains the basic law of the nation

Key timelines in South Africa’s transition to democratic rule and the 1993 constitutional process

The period 1990-1993

2 February 1990The ban on the ANC and other political parties is lifted as the first significant step towards a democratic transition
12 FebruaryNelson Mandela is released after 27 years of incarceration
4 May 1990The Groote Schuur Minute is signed, sealing a commitment by the ANC and the NP to pursue peace and negotiations. The government grants temporary immunity to some ANC members and promises to review security laws and lift the state of emergency
6 August 1990The ANC agrees to end armed struggle to seek for a negotiated settlement
September 1991The National Peace Accord, the country's first multiparty agreement, is signed and the negotiations commission starts exploring the idea of an interim government
20-29 November 1991The all-party preparatory meeting takes place. It is decided that the name of this forum be the Convention for a Democratic South Africa (CODESA) and that, where there is disagreement, the principle of "sufficient consensus" be the decision-making mechanism
21-21 December 1991CODESA I holds and adopts a declaration of intent, which all parties - except the IFP and the Bophuthatswana government - sign. The NP confirms for the first time that it is prepared to accept an elected constituent assembly, provided that it also acts as an interim government.
February 1992The NP accepts the ANC's demand for an interim government and the principles that a new South Africa be non-racial, non-sexist and democratic. A CODESA working group produces an initial agreement on general constitutional principles
March 1992The NP holds an all-white referendum to test support for the negotiations process - and receives overwhelming backing for reform. In the same month the ANC submits proposals for a two-phase interim government.
May 1992CODESA II is convened amidst tensions and infighting
June- August 1991Following negotiations, NP agrees to international monitoring and a UN team arrives
26 September 1992The two parties agree on a record of understanding dealing with a constitutional assembly, an interim government, political prisoners, hostels, dangerous weapons and mass action.
2 July 1993The Multiparty Negotiation Forum (MPNF) reaches agreement on a roadmap for a new constitution
16 November 1993Mandela and F.W. De Klerk, agree on final issues required to complete the interim Constitution in a deal which becomes known as the "six-pack" agreement.
18 November 1993Interim Constitution is ratified by the MPNF providing that the two houses of parliament will in sit in Congress as a Constituent Assembly to draft a new constitution

The Period 1994- 1997

January 1994Transitional Executive Council (TEC) is formed
27 April 1994First Non-racial general elections held
9 May 1994Constituent Assembly meets
10 May 1994Mandela is inaugurated as President
June 1994A constitutional committee led by Cyril Ramaphosa and Roelf Meyer – Secretary Generals of the ANC and the NP respectively - is established to be main multiparty negotiating body in the Constitutional Assembly.
September 1994Six thematic committees are established to receive and collate the views of all parties on the substance of the Constitution
January 1995An advertising campaign is launched to elicit public views on what should be in the Constitution.
September 1995The first consolidated draft of the new Constitution is produced.
October 1995A month later the first refined working draft is published.
8 May 1996Final text is adopted
1 July 1996Constitutional court begins certification hearing to control its conformity with the constitutional principles on which it was to be based
6 September 1996Constitutional court throws out the text for non compliance with the constitutional principles
October 1996Amended text is adopted by the Constituent Assembly and sent again to the Constitutional Court
18 November 1996Constitutional Court begins second certification hearing on the amended text
4 December 1996Constitutional Court certifies the amended text
10 December 1996Mandela promulgates the constitution into law
4 February 1997The constitution takes effect.