From An Eye-For-An-Eye Conflict To Eye-To-Eye Negotiations

20 years ago, our Constitution became the ultimate law of the land

07/12/2016 04:53 SAST | Updated 07/12/2016 08:02 SAST
Mike Hutchings/Reuters
Cyril Ramaphosa and Leon Wessels.

The thoroughfare from the autocratic order where the majority of the minority in the country had ruled the majority in the country to a complete democracy was built upon 34 constitutional principles. One of those principles determines that:

Everyone has to enjoy all universally accepted fundamental rights, freedoms and civil freedoms for which provision must be made and which must be protected by entrenched and justiciable provisions in the Constitution, that must be drawn up with due allowance for, among others, the fundamental rights contained in Chapter 3 of this Constitution [my own emphasis].

The run-up to this agreement was a steep and difficult road.

The constitutional principles were developed over a long period of time under extremely fluctuating and turbulent conditions. Direct and difficult negotiations took place at various places and in a variety of institutions. The principles and process were inclusive and were fully supported and underwritten by all the political parties. Nobody queried or deplored the fact that the Constitutional Court had been asked to certify that the new constitution was reconcilable with the principles the parties had agreed to. This certification took place at the end of 1996.

In this way South Africa achieved a new constitution and a human rights dispensation: a modern constitution with one of the most comprehensive human rights manifestos on the globe—one negotiated principle had produced no fewer than 27 rights. We are now engaged in arm wrestling about the interpretation and implementation of these rights. The Constitutional Court has up to now delivered 631 judgments. These battles are much better than casting stones or tossing teargas at one another.

In spite of shortcomings, political commentators still regard the constitution as the greatest unifying and common factor in our land.

From peace (1902) to peace (1996)

When Nelson Mandela, after years of negotiation, had to sign the Constitution in 1996 he had not forgotten the South African War. The signing ceremony had to take place in public in Vereeniging: "Because it was there that we experienced the first betrayal of the British and Boers."

Not only did it have to be in Vereeniging, but specifically in Sharpeville in Vereeniging; "because those who sacrificed must know that their struggle was not in vain and their efforts are not forgotten." It was in Sharpeville where 69 people were shot down on 21 March 1960 by the police and another 180 were injured when a peaceful protest against the dompas system went horribly wrong.

I was not surprised when 10 December was suggested as the date for the signing ceremony. It was, after all, International Human Rights day and the day in 1948 when the Universal Declaration had been accepted by the General Assembly of the United Nations. The Constitution was signed on the 10 December 1996, because SA wanted to signal to the world that SA was now, after 48 years, in step with the Universal Declaration of Human Rights.

Mandela's words triumphantly echoed across the George Thabe stadium: "Today, together as South Africans from all walks of life and from virtually every school of political thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny."

Let's forge ahead

I endorse Thomas Jefferson's view that one generation cannot bind another and that a constitution should therefore be reviewed every 19 years. "If it be enforced longer, it is an act of force, and not of right."

South Africa has now had the benefit of 20 years experience of our Constitution in action. Parliament should not be afraid to elevate the status of the section 45 (1)(c) Committee. This parliamentary committee is called upon to annually review the Constitution. The moment has arrived to engage the nation in a serious review process. I have no doubt that the idea of constitutionalism will stand the test of vigorous debates.

Wessels was a negotiator for the National Party Government and chaired the Constituent Assembly, along with Cyril Ramaphosa, between 1994 and 1996.