Introducing the New Constitutional Framework

Just two years after the election of 1994, on May 8, 1996, the Constitutional Assembly adopted the final constitution as put forth by the GNU. In that final constitution, a new government that recognized majority rule replaced the GNU. That meant that the majority party, the ANC, did not have to share executive power and could appoint cabinet members without consulting the minority parties in the National Assembly.5

After approval by the constitutional court in September 1996, the Constitution of the Republic of South Africa was formally proclaimed on December 18, 1996, and become effective on February, 4, 1997.6 From the very beginning, in the preamble to the constitution, South Africans were asked to recognize their past, to embrace their diversity, and to believe in the promise of a united South Africa:

We, the people of South Africa,

Recognise the injustices of our past;

Honour those who suffered for justice and freedom in our land;

Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity.7

Chapter one of the constitution, “Founding Provisions,” describes South Africa as a democratic state founded on the following values: (a) human dignity, the achievement of equality and the advancement of human rights and freedoms; (b) non-racialism 8and non-sexism; (c) supremacy of the constitution and the rule of law; and (d) universal adult suffrage, a national common voters roll, regular elections and a multiparty system of democratic government, to ensure accountability, responsiveness and openness.9 Those provisions are followed by the Bill of Rights, described in the constitution as “the cornerstone of democracy in South Africa.” That section guarantees more than 27 rights of all South Africans and recognizes the values of “human dignity, equality, and freedom.” The Bill of Rights states that the government may not discriminate against anyone directly or indirectly on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth. Other rights include the freedom oftrade, occupation, and profession; the right of workers and employers to fair labor relations; the right of everyone to have an environment that is not harmful to their health or well-being; the right to access adequate housing; and the right to access health care, food, water and social security.10

The constitution also addressed four issues that are of particular relevance to this book: gender equality; the recognition of cultural, religious and linguistic communities; education; and language and culture.

The constitutional framework specifically related to gender equality can be found in both the Bill of Rights and in Section 9, “State Institutions Supporting Constitutional Democracy.” Although not explicitly stated, the Bill of Rights protected women’s rights by prohibiting discrimination based on gender, sex, marital status, and pregnancy. Section 9 established the Commission for Gender Equality (CGE). The purpose of the commission was to “promote respect for gender equality and the protection, development and attainment of gender equality. It had the power to monitor, investigate, research, educate, lobby and advise and report on issues related to gender equality.”11

Other rights included in the Bill of Rights were:

  • Cultural, religious, or linguistic rights. Individuals could not be denied the right to practice their religion, enjoy their culture, or use their language, and they could form, join, and maintain those associations. However, those rights had to be consistent with the other provisions in the Bill of Rights. A Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities was established with the primary purpose of promoting respect for the rights of those communities—with the power to “monitor, investigate, research, educate, lobby, and report on issues of concern to cultural, religious, and linguistic communities.” 12
  • Educational rights. Section 29 of the Bill of Rights gave everyone the right to basic education and adult basic education.
  • Language rights. The constitution established 11 official languages of the country: Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa, and isiZulu. 13 It set forth that individuals had the right to their education in one of the official language or languages of their choice in public educational institutions, stating that everyone had the right to use their language of choice and to participate in a cultural life of their choosing.14
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