The African National Congress (ANC), the Pan Africanist Congress (PAC) and other organisations are demanding a constituent assembly that will draw up a constitution for a “new South Africa”. In this article we explain what this constituent assembly is all about.
New Constitutions are usually drawn up when countries are “born again”when the old way of ruling is changed and a fresh political start is made.
In Namibia a new constitution was drawn up this year after the country had been under foreign rule for more than a hundred years. A settlement was reached in 1989 and now the country is independent.
Now the time has arrived for South Africa to make a break with its past political history. A new chapter is being opened. Hopefully, negotiations leading to a solution of our problems will succeed and a new and democratic constitution that will accommodate all South Africa’s people
One way of drawing up a new constitution is by electing a constituent assembly to debate and accept the constitution. But before we can discuss what a constituent assembly is, we need to look at what a constitution is.
WHAT IS A CONSTITUTION?
A constitution is the foundation on which many. countries’ laws are built. Different countries do not have the same constitution. But normally a constitution provides for four areas: the structure of the government; the duties of government officials; the limits on the powers of government officials; and the process for changing the constitution – normally a two-thirds majority of the population or members of parliament.
Constitutions can be written or unwritten. In countries where all the laws are set out in one document we speak of a written constitution. The agreement of the “Union of Utrecht”, drawn up in the Netherlands in 1579, was one of the very first constitutions to be written down. Perhaps the most well-known example of a written constitution. is that of the United States of America (USA). It was drawn up in 1787 and is certainly one of the oldest constitutions.
Some countries have no such single document. The constitution is contained in several laws, documents, agreements, customs and traditions. Britain’s constitution is one example of an unwritten constitution. The way that country is governed is stated in a number of documents starting with the Magna Carta which King John signed in 1215. Governments which came after King John’s have ruled in the spirit of this document.
For example, clause 39 is still as relevant today as it was 775 years ago.: “No free man may be taken, imprisoned, dispossessed, outlawed, exiled or in any way injured … except by the lawful judgement of his equals and by the law of the land”.
DRAWING UP A CONSTITUTION
A constitution, as we have said, is an important document. It contains the feelings, and the wishes of the population as a whole -“the will of the people”, as it is often said.
There are several ways of drawing up a constitution. The National Convention is one method. In this case, leaders of all the political parties in a country meet to work out a new constitution. Afterwards, they ask the people to vote for or against it.
However, dictators often ignore the masses and draw up constitutions on their own-without even bothering to have a referendum. This happened in Spain in 1939 during Francisco Franco’s rule.
Many people believe that the most democratic way of drawing up a constitution is through a constituent assembly. The constituent assembly consists of representatives of all political parties of a country. Normally the representatives are elected in free and fair elections open to all citizens of 18 years or older.
In the constituent assembly the parties are proportionally represented. This means that seats are given to the parties according to the number of votes they receive in the elections. Let us take the following example: There is a constituent assembly with 80 seats being fought for by several parties. A total of 6000 people vote. One party, say “The Blues” get 1200 votes. How many seats will “The Blues” get?
The first step is to calculate what percentage of the total votes is 1200 votes. The answer is 20%. The second step is to calculate how many seats make up 20%. The answer is 16 seats (see box). The remaining 64 seats will be given to other parties in the same way. This then, is what is called “proportional representation”.
WHY A CONSTITUENT ASSEMBLY?
If a constituent assembly is elected by the people, then the result of the election will show who among the parties has some support and who has none. Only parties with support get the chance to draw up the constitution. A constitution drawn up in this way represents the majority of the population.
The idea of a constituent assembly started long ago. It was first put into practice in France. After the “French Revolution” the citizens decided that it was time they drew up a constitution on their own. So, on 9 July 1789, their representatives sat in the assembly to start the work of drafting the constitution.
Since that time, this idea has been accepted internationally as one of the best ways of drawing up a constitution. Many other countries have used it and some have called it by different names, but the spirit has remained the same.
For example, when Mozambique became independent in 1974 they called their constituent assembly a “People’s Assembly”. In November 1989, a 72-member constituent assembly drew up Namibia’s first constitution. This constitution was put into effect on 21 March this year when the country became independent.
In the history of South Africa this method has never been used before. The ANC, the PAC and other organisations are now demanding that the new constitution of South Africa be drawn up by this method. It would be the first democratic constitution this country has ever had.
SA’s CONSTITUTIONAL HISTORY
Since 1910 South Africa has had three constitutions. All of them have been unjust, undemocratic and racist. The first one was drawn up in 1909 by an all-white National Convention. This was when the four provinces Transvaal, Natal, the Cape Colony and the Orange Free State-agreed to form the Union of South Africa in 1910.
This constitution totally left out the black people from participating in the government of their own country except for the “coloureds” who were allowed to vote until 1956.
The black people have never accepted this situation. Soon after the draft of the (Union of) South Africa Act was published in February 1909, a “national convention for the Africans” was called by the Orange River Colony Native Congress. This was to be one of the most important meetings to be held by the black people.
On Wednesday, 24 March 1909, the South African Native Convention (SANC) was opened by the chairman, Joel Goronyane of the Becoana Mutual Improvement Association. This convention was held in a schoolroom in Waaihoek township, Bloemfontein. It was also attended by the “coloured” people’s African Political Organisation (APO).
The convention discussed the South Africa Act and noted that the new constitution did not promote the progress and welfare of all the citizens. “The colour bar is a fundamental wrong and injustice,” the delegates said.
At the end of the the convention the delegates agreed to continue fighting for the rights of the black people.
But nothing changed the views of the white South African leaders and they went ahead with the 1909 constitution. That same year a delegation of nine leaders was elected to travel to Britain to put the case of the black people. In the delegation were Thomas Mapikela, Dr. Walter Rubusana, Daniel Dwanya, John Tengo Jabavu, APO’s Dr Abdulla Abdurahman, D.J. Lenders. M.J. Fredericks and W.P. Schreiner, At that time South Africa was still a colony of Britain.
The SANC had been an important meeting for the black people: it had cemented the seeds of unity and cooperation that had existed among them for some time.
It was in this spirit that on 8 January 1912, the African people gathered in their hundreds in Bloemfontein and formed one organisation, the South African Native National Congress later to be called the ANC. This organisation became the most important weapon in the struggle for the birthright of the African people.
In 1961 South Africa broke ties with Britain and the country became the Republic of South Africa. The ANC and other organisations called on the government to call a non-racial National Convention to draw up a new constitution. Once again the government closed its eyes and ears and went ahead.
The present Tricameral parliament so-called because it has three houses of parliament (for whites, “coloureds” and Indians)-started in 1984 and is based on South Africa’s third constitution.
This parliament is still racist and excludes the great majority of the country’s population. The United Democratic Front (UDF) was formed in 1983 to oppose this constitution.
It is seventy-eight years since the ANC was formed to fight for the inclusion of blacks in the central government. That struggle still continues.
The ANC and the PAC demand that there should be a constituent assembly to draw a new constitution. Learn and Teach interviewed a member of the ANC and PAC to hear what they have to say about their organisation’s positions on the new constitution.
THE ANC SAYS …
Zola Skweyiya is the Director of the ANC’s Department of Legal and Constitutional Affairs and also the chairperson of the ANC’s Constitutional Committee.
Skweyiya explained why his organisation is calling for a constituent assembly. “For a change, the constitution must come from the people themselves. Our people must elect those people they trust and have faith in to sit on the Constituent Assembly.
“The ANC has set up a Constitutional Committee which will organise seminars, debates and educational workshops around the constitution. Many people in this country have never been involved in any constitution making. Therefore, we must educate them in order to improve their knowledge and understanding of a constitution, ” said Skweyiya.
Who should supervise the elections for this constituent assembly? “Our position is that an interim government accepted by all the parties should be set up to run the country during the transitional period of constitution making.
“We cannot be expected to simply believe that the National Party will be neutral during the transitional period while it still runs the country, controls the army and the police, and the South African Broadcasting Corporation (SABC),” Skweyiya said.
Does the ANC see the possibility of forming an alliance with other organisations calling for a constituent assembly? The ANC, Skweyiya said, believes in the unity of the democratic forces.
“Our view is that there should be two camps at the negotiation table. One camp should consist of the democratic forces and the other one of those who believe in group rights,” said Skweyiya.
THE PAC SAYS
PAC (Internal) General Secretary, Benny Alexander, told us about his organisation’s views. “The demand for a constituent assembly is not a request to the ‘Boers’. It is a demand of the masses. It is a way we can use to destroy white domination in a democratic way.
“We are proposing that there should be 265 seats contested at an election by all the parties. The parties elected will be proportionally represented in the constituent assembly,” Alexander said.
Who should supervise this constituent assembly? “That will be sorted out before the elections start. But as far as we are concerned the present government is illegitimate -it does not have the support of the majority – and therefore cannot be given the duty of supervising the elections.
“As far as the constitution is concerned we want a one-house parliament, one person one vote, and one united Azania,” said Alexander.
Is there any chance of the PAC forming an alliance with other organisations calling for a constituent assembly? “We do not know what the views of other organisations are on this matter. Once we know we can take a position,” said Alexander.
There are many political organisations in South Africa and all of them claim that they have support. Both the ANC and the PAC agree that an election for the assembly will show once and for all who has support.
THE GOVERNMENT’s VIEW
The government is opposed to the demand for a constituent assembly before negotiations are held. At a press conference in June this year, the Minister of Constitutional Affairs, Dr Gerrit Viljoen, explained the government’s position.
Viljoen said that to agree now to a constituent assembly before negotiations was giving in to one person-one vote before negotiations begin. An election for a constituent assembly would commit parties to policy positions which they would have to stick to during negotiations.
He said that a constituent assembly is only suitable where a new state – like in Namibia – is born. In South Africa a state and a constitution already exist. Therefore, this constitution can simply be changed by agreement by all the parties, Viljoen said.
ORGANISE OR LOSE!
It is obvious why the government refuses to have elections for a constituent assembly. It fears that in a free and fair election it will not get enough votes and its power and role will be reduced to that of the other parties. This, the government does not like.
The government is also aware that in the election its “friends” – some homeland leaders, for example – may not get many votes and their power will be reduced. The government prefers to write out a constitution before any election. It also wants all parties to have equal representation – irrespective of whether there is proof of any support for them – when the constitution is debated.
Whether the government will agree to the election for a constituent assembly or not is still to be seen. But the democratic forces should not wait for the government to agree.
They must put the demand for a constituent assembly at the head of all the demands.
At the same time they should organise many people to their side so that they can become strong enough to see that the constitution truly represents the majority – by this we do not mean only the black majority, but the majority of all South Africans, black and white.
We should not forget what happened in Namibia. Many people thought that the South West African People’s Organisation (SWAPO) would get the required two-thirds majority votes – 48 out of 72 seats. This would have enabled it to draw the constitution on its own. This was not to be – it got 42 seats instead -and we were disappointed. This was a good lesson for all of us.
If we do not want to be disappointed we should start organising now! Forward to the constituent assembly!
constituency – a town or area which is officially allowed to elect someone to represent them in parliament. For example, we can speak of the Grahamstown constituency assembly – a gathering of people for a particular purpose constituent assembly – an assembly of leaders who have been elected to draw up a new constitution convention – a large meeting of an organisation or political group interim government – a government that will rule a country until a new constitution is drawn up transitional period – while negotiations for a new constitution are going on but before it is accepted