The South African Constitution: The Foundation of our Non-Racial Democracy

Speech by FW de Klerk Speech in acceptance of the Sandra Day O’Connor Justice Prize

Phoenix, Arizona, 16 February 2019

It is an enormous honour for me to accept the 2019 Sandra Day O’Connor Justice Prize.

I have always had the greatest admiration for the United States Constitution and for your Supreme Court as its guardian and interpreter - and, of course, for the role that Sandra Day O’Connor played as its first female Justice.

My special interest arises not only from my own role in the process that led to the adoption of the South African Constitution in 1996 - but also from the fact that I myself am also a lawyer. In fact, in 1972 I had to choose between taking up a professorship in law at my old university - or entering politics. I chose the latter - but in my heart I have always remained a lawyer.

The process by which the United States drafted and adopted its Constitution in 1787 differed substantially from the process that we South Africans followed some 200 years later. You were most fortunate to have some of the greatest minds of the latter part of the 18th century involved in the drafting of your Constitution - men of the stature of Thomas Jefferson, James Madison and Alexander Hamilton. The text of your Constitution arose from deliberations steeped in the intellectual traditions of the enlightenment and articulated in erudite essays in the Federalist Papers. Your founding fathers wrestled with the time-old challenges of limiting the power of the executive and of the majority - and of finding the best balance between the rights of states on the one hand and the federal government on the other.

In our case, we had to build bridges across the great cleavages in our society that had been caused by centuries of colonialism and apartheid. We had to find a balance between the fears of minorities - that had much to lose - and the formerly disenfranchised majority that had much to gain. We realised that these divisions could be bridged only by constitutional assurances that - while opening the way to transformation - would guarantee the reasonable rights of all our citizens and all the communities in our complex multi-cultural society.

It was with this objective in mind that delegates from 19 political parties and the South African government gathered at the CODESA - the Congress for a Democratic South Africa - in December 1991.

Parties representing some 90% of our people - and substantial majorities of all our communities - were involved in this historic process.

Much preparatory work had already been completed - and the first task of the assembled delegates was to sign a Declaration of Intent which spelled out their common objectives. These included provision for:

  • a united, democratic, non-racial, non-sexist and sovereign State;
  • the supremacy of the Constitution and an independent, non-racial and impartial Judiciary;
  • a genuine multi-party democracy based on universal adult suffrage;
  • the separation of powers with appropriate checks and balances;
  • acknowledgement of South Africa’s diversity of languages, cultures and religions;
  • universally accepted human rights protected by an entrenched and justiciable Bill of Rights.

What we envisaged was an entirely new Constitution that would differ markedly from all the constitutions that had preceded it. Previous constitutions, dating from the Act of Union in 1910, had been based on the Westminster model in which Parliament - and not the Rule of Law - was supreme. There was no Bill of Rights and Parliament could - and did - make any law that it pleased - all of which helped to give rise to the injustices of apartheid.

One of the serious obstacles that CODESA encountered was a basic difference between the majority African National Congress and the minority parties on the process by which the new Constitution should be adopted. The ANC insisted that the Constitution would have legitimacy only if it was adopted by a duly elected constitutional assembly. The minority parties feared that in any such process their concerns and demands would be swept aside by the majority.

The delegates found an ingenious solution to this dilemma: all the parties represented in CODESA would first reach agreement on an Interim Constitution in terms of which the first elections for a democratic Parliament would take place. The democratic Parliament - sitting as a constitutional assembly - would then draft and adopt a final Constitution. However, the final Constitution would have to comply with 34 immutable constitutional principles that would be included in the Interim Constitution. The newly-appointed Constitutional Court would have to certify that the new Constitution did, indeed, comply with the pre-agreed constitutional principles.

negotiations continued through 1992 and 1993 and were marred by faceless violence perpetrated by extremists on all sides who were opposed to a constitutional settlement. In June 1992 the ANC walked out of the negotiations for three months. No sooner had they returned to the negotiating table, then the Zulu-based Inkatha Freedom Party and several right-wing parties decided to boycott the talks. IFP returned to the process only a week before our first inclusive democratic election in April 1994.

We finally reached agreement on our Interim Constitution in December 1993. We succeeded despite all the crises, the walk-outs, the violence and the reality that we all had to make painful concessions.

Our achievement was rightly regarded by the whole world as one of the crowning glories of the latter part of the 20th century. It was seen everywhere as an example to all divided societies of what could be achieved by rational debate, compromise and goodwill.

I believe that whatever party we belonged to, it was our finest hour.

On 11 May 1994 it was my honour to transfer power - not to the ANC or to our newly-elected President, Nelson Mandela - but to our entirely new constitutional dispensation. Although it meant the end of my own presidency, it was one of the most fulfilling days of my life. I felt that after so many centuries of injustice and recriminations we South Africans would at last be able to look one another in the eye as equals and join hands in building a better and fairer South Africa for all our people.

After two years of further negotiations, Parliament - sitting as the constitutional assembly - adopted our present Constitution. President Mandela said at the time that its founding principles were “immutable”. He described the Constitution as “our national soul, our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions”. He also made a pledge that “Never and never again shall the laws of our land rend our people apart or legalise their oppression and repression.”

The essence of the new Constitution is encapsulated in its founding values in section 1. They include:

  • human dignity, the achievement of equality and the advancement of human rights and freedoms;
  • non-racialism and non-sexism;
  • supremacy of the Constitution and the Rule of Law and
  • a genuine multi-party system of democratic government, to ensure accountability, responsiveness and openness.

For me - and I am sure for Justice O’Connor during her distinguished career at the Supreme Court - the crux of these foundational values is the concept of the Rule of lLw. It is the notion that the affairs of mankind should not be ordered arbitrarily according to the tastes of the day or the wishes of the majority - but by clear, objective and inherently equitable laws. It is grounded on the principle that everyone - however rich or powerful, however grieved or grievous, however popular or unpopular - should be equal before - and subject to - the Rule of Law - administered by independent, impartial and competent courts.

The founding principles, which incorporate the Rule of Law - and which encapsulate the essence of our Constitution - can be amended only with a 75% majority in Parliament. The rest of the Constitution can be amended with a two-thirds majority. However, to date, although there have been 17 constitutional amendments, none of them has been controversial.

Significantly, and in accordance with the Rule of Law - section 2 of the Constitution provides that the “Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

This provision has, since then, been frequently invoked by our Constitutional Court, which has consistently struck down legislation and executive conduct that - in its view - do not comply with the Constitution:

  • In a landmark judgement in 1995, the Constitutional Court declared the death penalty to be unconstitutional because retribution could not be accorded the same weight under the Constitution as the rights to life and dignity.
  • In 2000, the Constitutional Court took a major step in requiring the State to put in place a reasonable programme for the progressive provision of adequate housing for all.
  • In 2002, in another seminal judgement, the court ordered the government to make anti-retroviral drugs available to reduce the risk of mother-to-child HIV infection at public hospitals and clinics.

The independence of the Judiciary has been broadly accepted by the ruling ANC - perhaps, with some exceptions after former President Jacob Zuma became Head of State.

  • In 2011 he warned that “the powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections”.

He added that the government’s political opponents should not be able to subvert the popularly elected government by using the courts to “co-govern the country”.

  • He later stated baldly that the government wanted to review the powers of the Constitutional Court.

all this we may conclude that President Zuma was not an enthusiastic supporter of the concept of the Rule of Law. However, in the ensuing years it was the Constitutional Court - and not President Zuma - who prevailed.

President Zuma’s blandishments did not deter the Constitutional Court from resolutely holding the Executive and Legislature to account and from striking down unconstitutional legislation and action. In particular, the Court played a leading role in thwarting President Zuma’s efforts to “capture” State institutions with a view to opening the floodgates of industrial scale looting and corruption.

  • In March 2016, the Court upheld the report of South Africa’s fearless Public Protector who had exposed the manner in which President Zuma had spent some US $18 million of public money on his retirement home.
  • In December 2017, it ruled that Parliament had failed to carry out its constitutional obligation to hold President Zuma accountable.
  • In August last year the Court ruled that the appointment of Shaun Abrahams - whom President Zuma had chosen as the head of South Africa’s National Prosecuting Authority - was constitutionally invalid.

Unfortunately, the Court’s record in upholding the language and other rights of minorities has been more chequered.

  • In 2004 it ruled, in effect, that any affirmative action measures taken by the State to advance equality were automatically fair - despite a clear constitutional requirement that the fairness of all such measures must be properly established.
  • The Court has also adopted a critical stance against the right to education in the language of one’s choice - and also with regard to the cultural rights of some of our minorities.

the Constitution has served us well for the past 23 years.

In 1996 we emerged from our negotiation process with what is widely regarded as one of the best constitutions in the world. However, in retrospect, we could have done some things better:

  • Because of our proportional electoral system, Members of Parliament owe their first loyalty to the party officials who include their names on the electoral list - and not directly to the voters themselves. This means that parliamentarians are firmly under the control of the political leaders who head the Executive. As a result, the separation of powers between the Executive and the Legislature has been diluted - and Parliament frequently fails to hold the Executive to account.
  • The separation of powers would be strengthened if we elected our President and Deputy-President directly - as you do in the United States.
  • Also - and as we have learned at a tremendous cost under the presidency of Jacob Zuma - the President’s power of appointing key officials is far too broad - and should also be subject to the scrutiny of Parliament.
  • In addition - and as I pointed out during the negotiations - our Constitution creates little or no space for our ethnic, linguistic and cultural minorities who sometimes feel that they are excluded from the processes by which they are governed.

all this, the adoption of our Interim Constitution in December 1993 and our final Constitution in May 1996 created a framework for peace, hope and justice for all our people.

Our experience has shown that even the most serious conflicts can be resolved peacefully through negotiations.

  • In May this year we will be holding our sixth national elections.

They will be administered by an Independent Electoral Commission - and will be free and fair.

Our judicial system remains independent and vigilant.

  • As I speak, various judicial commissions appointed by President Ramaphosa are exposing the enormous breadth and depth of the corruption that took place during the presidency of his predecessor. The big test will be to see how many of these revelations will result in the prosecution of those involved.

In all this we continue to be inspired by the examples of other successful constitutional democracies and by great judges of the stature of Sandra Day O’Connor.

We look forward to carrying forward our newly-established constitutional tradition - not only for the next 25 years - but - as with the example that you have set in the United States - at least for the next 200 years.

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