The Building Blocks: The Constitution and Bill of Rights

The ANC, the NP, and the IFP formed the Government of National Unity (GNU) after the election. Working as the Constitutional Assembly (CA), their task was to create a new path forward for the nation by writing the final constitution that would take the country into the future.2 While the ANC was the leading group in the constitutional negotiations process, working with the NP and the IFP, other organizations—such as the South African Communist Party (SACP), the Congress of South African Trade Unions (COSATU), and the ANC Women’s League—had a strong influence on the negotiations. They collaborated with the ANC to ensure that their respective concerns and visions for the country were reflected in the new constitution.

The ANC, as the major party, had a significant task at hand: to set the course and direction of the country. The challenge was to create a constitution that would reflect the new South Africa and embrace its entire people, as complex and diverse a nation as it was. For the ANC in particular, it was the final stage of its transition from a resistance and protest organization to a governing body, requiring a different set of skills, resources, and knowledge. The burden was clearly on the ANC leadership and its supporters to ensure that what they created would begin the healing and recovery process, address the multiple and complicated challenges facing the country, and set the course for South Africa’s future.

To fully appreciate the magnitude of the task facing the ANC and the GNU in creating a new constitution, it is important to keep in mind what they had to dismantle. The apartheid government had formalized, institutionalized, and legalized racial discrimination against and segregation of the majority of its citizens. When the ANC and Nelson Mandela came into power in South Africa in 1994, they inherited the economic and social legacies of that system. The country was struggling with a large pool of unskilled and unemployed labor, widespread and deep poverty, and limited access to education, health care, and other basic public services for a majority of its population. The economic sanctions and political isolation that other nations had imposed on the country to protest the apartheid government were still in place. In essence, South Africa was cut off from the rest of the world when the ANC came into power.3

The promise of the new South African government was also constrained by the power-sharing pact negotiated with the apartheid government and from pressures imposed by the external global environment. Those two factors, which will be discussed at length later in the book, had a great influence on the construction of the new government, which had to develop policies that were globally relevant at the same time it pursued a profound transformation of the country’s political and economic systems to those based on social justice, democracy, and equity.4

The end of apartheid in 1994 allowed South Africa to shift from a one- party bureaucracy to a democratic system. In order to make that change, the new government had to dismantle the framework that had created apartheid and establish and integrate new democratic structures. And it had to develop an economic model that would allow the country to move from a state-led to a market-led economy.

A first step was the creation and acceptance of a new constitution two years later. Understanding the constitutional framework around the key issues then confronting the nation can help provide perspective on the advances that South Africa has made—and hasn’t made—since the end of apartheid and the beginning of the new Rainbow nation. And it will demonstrate how those key issues, while interconnected, often times contradict one another—leading, at best, to mixed results and limited progress.

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