UNIVERSITY OF PENNSYLVANIA - AFRICAN STUDIES CENTER
AN INFORMATION BULLETIN OF THE AFRICAN NATIONAL CONGRESS
13 MARCH 1995, NUMBER 1
Constitution News is distributed fortnightly by the ANC's National Constitutional Commission to keep ANC, Alliance and MDM structures informed of developments in the constitution-making process.
Welcome to the first edition of Constitution News. It will be produced fortnightly by the ANC Constitutional Commission as a way of keeping the structures and membership of the movement informed of developments both within the Constitutional Assembly and within the structures established by the ANC to facilitate its input into the constitution-making process. It will also provide a forum to raise issues of the constitution for discussion. Constitution News is not a one-way operation - provinces, regions and branches are encouraged to use Constitution News to raise pertinent debates, problems or queries.
This first edition provides an introduction to the constitution- making process - outlining the structures of the CA and their functions, and presenting the structures established by the ANC to coordinate our input into the constitution. Future editions will provide more detailed information on the work of the CA theme committees and on issues which we in the ANC need to resolve.
The task of writing a new constitution poses several challenges - not least of which is the limited time period in which the constitution needs to be written. If we want a constitution which embodies the democracy for which we have struggled so hard, we need to ensure that the ANC is leading the process. As an organisation we need to be one step ahead of the Consitutional Assembly.
The constitution should also reflect in the process of its writing, that same commitment to democracy. We need therefore to involve as many people as possible in writing the constitution. The CA itself has embarked upon a public participation programme. We should complement and deepen that programme by ensuring that every member of the ANC and the democratic movement has some personal involvement in the constitution.
To achieve this, provincial constitutional commissions need to be established as a priority, and effort needs to be put into their effective functioning. The provincial commissions will be reponsible for establishing clear lines of communication between itself, the national commission and regional and branch structures.
The development of a coherent ANC constitutional vision and a complete set of constitutional principles is also a priority. The ANC National Constitutional Conference - to be held from 31 March to 2 April - will be crucial in this respect. It gives us less than a month to circulate the draft policy proposals for the constitution throughout our structures, to have discussion on it, and to have that discussion inform the decisions made at the conference. There will be further information on the conference in the next edition.
One of the greatest challenges is to make the process which unfolds in the Constitutional Assembly and in its theme committees understandable and accessible to the ordinary South African.
Beyond that we need to ensure that the positions which we develop on the constitution have the support of the majority of South Africans - so we need to popularise our positions and argue for their correctness not just in the CA, but in society broadly. It is up to us to make this process people-driven.
A BEGINNER'S GUIDE TO CONSTITUTION-MAKING
The final constitution of South Africa will be written by the Constitutional Assembly (CA), which was elected in last year's national election. The CA is but one of several structures involved in the process.
The Constitutional Assembly (CA) itself consists of 490 members - all the members of the National Assembly and the Senate. The CA will debate and finally adopt the new constitutional text. The CA's chairperson is Cde Cyril Ramaphosa and the deputy chairperson is the NP's Leon Wessels. The composition of the CA is as follows:
ANC 312 members NP 99 members IFP 48 members DP 14 members PAC 10 members FF 5 members ACDP 2 members
The CA has established a number of sub-structures to carry out the task it has been set.
The 46 member Constitutional Committee (CC) coordinates the process on behalf of the CA. All parties are represented in the CC in the same proportion as in the CA. The CC has a mandate to undertake some level of negotiation and decision-making. The CC reports directly to the CA and is responsible for preparing reports and agendas for the CA to consider.
The 12 person Management Committee deals with matters of process - not substantive issues. It also prepares agendas and reports for the CC and deals with the day-to-day management of CA structures.
Six theme committees have been established to each deal with specific aspects of the new constitution. The committees are responsible for processing submissions from each of the parties - as well as other organisations and individuals. Theme committees do not have decision-making powers. They merely identify contentious and non-contentious issues and make recommendations to the CC. The theme committees are:
1 Character of the State 2 Structures of government 3 Relationships between levels of government 4 Fundamental rights 5 Judiciary and the legal system 6 Specialised structures of government Theme Committee Six has broken up into four sub-committees: * Public service and administration * Transformation and monitoring * Security apparatus * Financial institutions
Each theme committee has special advisors and drafters to assist them in turning the submissions they receive into text which can be included into the constitution. Each theme committee is presided over by three chairpersons and a core group of seven to eight people.
The process of writing the new constitution has been divided into six conceptual phases:
* Evaluating the full extent of each Theme Committee, receiving and processing submissions and producing reports for the consideration of the CC.
* Drafting political positions into legal text.
* Referring the draft to the Constitutional Court to ensure compliance with the constitutional principles.
* Placing the text before the public for further debate.
* The text will be ready for debate and adoption in the CA.
* Certification will be sought from the CA.
These are merely conceptual phases, and there will be a great deal of interaction and overlap between many of these activities. The deadlines which have been set for the process are:
30 June 95 Theme committees submit their final reports 14 July 95 The CA adopts a draft constitutional text 31 Aug 95 The constitutional text is put before the Constitutional Court 31 Oct 95 The draft constitutional text is published for public comment 10 May 96 The CA debates and adopts new constitution
Through a community liaison strategy, the CA administration hopes to receive input from the population at a number of levels - through, among others, written submissions, community meetings and sectoral conferences. This will be accompanied by a media campaign, which includes the CA publication, Constitution Talk.
The ANC needs to be active in this process, as it provides an opportunity to have an even greater impact on the process of constitution-making.
THE ANC'S LEADING ROLE
The ANC has established a number of structures and processes to ensure that its input into the constitution-making process is coordinated and inclusive.
National Constitutional Commission
The NEC established last year the National Constitutional Commission (NCC). The NCC is responsible for processing the ANC's positions on the constitution-making process and presenting proposals to the NWC and NEC for decision.
The National Constitutional Commission meets every month, and more often when necessary.
The following people are on the Constitutional Commission:
N. Mandela T. Mbeki J. Zuma C. Ramaphosa C. Carolus A. Stofile Z. Skweyiya P. Maduna S. Mufamadi B. Kgositsile K. Asmal J. Nhlanhla J. Modise M. Manzini V. Moosa M. Maharaj D. Omar B. Ngcuka J. Netshitenzhe B. Mabandla F. Ginwala M. Phosa one representative each from: nine provinces, ANC YL, ANC WL, Cosatu, SACP and SancoCommission Secretariat
The secretariat coordinates the work of the commission, and meets on a weekly basis. The following comrades are on the secretariat:
Z. Skweyiya C. Ramaphosa V. Moosa F. Ginwala M. Manzini B. Kgositsile
In addition, an Extended Secretariat has been established which incorporates the secretariat members and ANC representatives from each of the theme committees. This provides an ongoing relationship between the Commission Secretariat and ANC CA structures. The extended secretariat meets every week.
ANC Theme Committee Caucus
The Theme Committee Caucus of the ANC is comprised of all ANC members of the six theme committees. The caucus coordinates the approach of the ANC to each of the theme committees, and reports on the progress of the theme committees to the Extended Secretariat.
The caucus has established study groups of the ANC for each theme committee, so that ANC members can debate and formulate positions on the details of the issues of their theme committee.
Provincial Constitutional Commissions
Each Provincial Executive Committee (PEC) has been tasked with establishing a Provincial Constitutional Commission for debating constitutional issues at a provincial level, and which can coordinate regional and branch discussion and input into the constitution-making process. Each provincial commission is represented on the NCC.
CONSTITUTIONAL CONFERENCE TO DEVELOP ANC POLICY GUIDELINES
The ANC's National Constitutional Conference will be held at Nasrec in Johannesburg from 31 March to 2 April 1995. The conference will be the culmination of a process of country-wide consultation and discussion on the ANC's draft constitutional policy, and will provide the ANC members of the CA with a clear mandate.
The draft constitutional policy document entitled Building a United Nation is being distributed to all the provinces, and should be discussed thoroughly in preparation for the conference. The Constitutional Commission will be meeting on 25-26 March to produce a final draft based on the discussions that have taken place around the country.
Discussion at the conference will mainly take the form of commissions delineated according to the contents of the draft proposal.
Delegates to the conference - approximately 750 people - will be drawn from ANC structures, ANC YL, ANC WL, alliance organisations and structures in the MDM.
The Building a United Nation document draws on a number of previous policy guidelines of the ANC, such as those developed in the May 1992 policy conference and the December 1994 National Conference. It also draws on the work of the former Constitutional Committee of the ANC and from ANC submissions to the multi-party negotiating forum. Where necessary, new proposals have been suggested.
The document suggests some basic approaches to the process of writing the new constitution, based to a large extent on the positive and negative experiences of the interim constitution. It says the final constitution needs to avoid some of the approaches to constitution-making and the consequent characteristics of the interim constitution, which:
* were too detailed, and purported to deal with issues which should be left to parliament to legislate on. It is not in our interests to negotiate provisions in the constitution which can be dealt with by statute. In general, the only issues which should be constitutionalised are the principles upon which our democracy is founded and guaranteed, as well as the necessary identification of the essential features of the institutions which give expression to these. The mechanics and rules of such institutions should be left to parliament to create.
* provided an excessive set of structures, duplication of functions, often boosting the costs of government, sometimes without any clear benefit to our people. The process did not encourage a M-RcostingM-S of the measures and means introduced.
* concentrated on regional government and regional representation at the expense of local and national levels of government.
* abounded with complex, legalistic language. The constitution should be written in a concise style and be suitably designed. Yet it should be drafted in clear, simple and understandable language.
The document proposes that the ANC establish its own constitutional principles which will guide our members in the CA and in the theme committees. The document further suggests that the guiding principles should be as follows:
1. The constitution of South Africa shall create a framework to build a united and undivided nation.
2. The character of the state shall be a multi-party democratic state based upon democratic majority rule.
3. The Constitution shall commit the country to a non-racial and non-sexist order based on the inherent dignity of all persons and the equal enjoyment of all human rights.
4. There shall be a bill of rights guaranteeing all accepted human rights including socio-economic rights and which shall be, where appropriate, applicable against all sources of power.
5. The Constitution shall as far as possible empower the poor and the vulnerable to enforce their rights and shall inter alia create a Human Rights Commission and a Public Protector to perform this function.
6. There shall be regular elections, at no longer than five year intervals, on a common voters roll based on universal adult suffrage at all levels of government. The electoral system at the various levels shall ensure accountable representation.
7. Parliament shall, subject to the Constitution, be supreme law-maker, and the expression of the will of the people. The executive will be accountable to it.
8. Parliament must not be limited in its capacity to legislate so as to address the legacy of the past including such issues as land restoration, redistribution and affirmative action.
9. Government shall be formed by the majority party or voluntary coalitions, if any.
10. Government shall be honest, accountable, transparent and cost-effective.
11. There shall be democratically elected government at regional and local levels (both urban and rural) whose powers shall be set out in the constitution. The powers of regional government shall be subject to the need for national uniformity, national reconstruction and development, as well as the values in the Bill of Rights. National government shall be ultimately responsible for financial and fiscal matters.
12. The civil service shall be representative, impartial, and shall loyally serve the government of South Africa and mechanisms shall be adopted to ensure the accountability and transparency of the public service.
13. Separation of powers between the organs of government shall be provided for in a manner consistent with the accountability of the executive to Parliament and the principle of majority rule.
14. The role and status of traditional leaders in the non- partisan promotion and protection of customs, culture and customary law, shall be recognised, subject only to the principles set out above.
15. Powers should be distributed to the provinces so as to promote on the one hand government closer to the people, and popular particpation in governance, and, on the other hand to minimise antagonistic divisions between provinces and between levels of government.
16. All provisions of the final constitution shall be capable of amendment subject only to the constitutionally prescribed majorities and procedures.
Message-Id: [199503230759.CAA25108@orion.sas.upenn.edu[ Date: Thu, 23 Mar 1995 00:16:30 -0500 From: Faraz Fareed Rabbani [email@example.com[ Subject: ANC - Constitution News
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