Chapter 5 Overview

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The Government of National Unity and the 1996 Constitution

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The Government of National Unity

President Mandela and the Government of National Unity (GNU) were inaugurated in Pretoria on 10 May 1994. The ANC was entitled to appoint the President (Nelson Mandela), an Executive Deputy President Thabo Mbeki) and 18 cabinet ministers.

Because the national party won more than 20% of the vote, it could appoint an executive deputy president (FW de Klerk) and six cabinet ministers. The IFP, with more than 10%, could appoint three cabinet ministers.

The GNU ruled South Africa until 1999. However, the National Party withdrew from the GNU in June 1996 because power-sharing was not included in the final constitution.

The Constitutional Assembly

The newly elected members of parliament, sitting as a constitutional assembly, were tasked with drafting a new constitution within two years within the framework of the 34 constitutional principles in the 1993 Constitution.

Cyril Ramaphosa of the ANC was the chair of the constitutional assembly and Leon Wessels of the National Party was the deputy chair.

The Constitutional Assembly was assisted in its work by

A 46-member multiparty constitutional committee which acted as the principal negotiating forum;
A 7-member panel of independent constitutional experts which assisted with constitutional advice and helped to resolve impasses;
A 12-member management committee which prepared agendas and reports; and
A 120-member administration.

The Adoption, Certification, and Signing of the 1996 Constitution

The Constitutional Assembly adopted the new constitution on 8 May.
The new constitution was referred to the Constitutional Court for certification in respect of its compliance with the 34 constitutional principles in the 1993 Constitution. The court concluded that several provisions did not pass muster and returned the draft constitution to the Constitutional Assembly to make the necessary amendments. The amended text was given unanimous approval by the Constitutional Court on 4 December 1996 and was signed into law by President Mandela in Sharpeville on 10 December 1996 and came into effect of 4 February 1997.

The 1996 Constitution

The 1996 Constitution achieved virtually all the provisions that had been included in the 1991 Declaration of Intent. It proclaimed that

The Constitution would be the supreme law and that it would be upheld by an independent and impartial judiciary;
There would be a genuine multiparty democracy;
There would be a separation of powers between the Legislature, the Executive and
the Judiciary;
The diversity of the languages, cultures and religions would be accommodated; and
There would be a justiciable Bill of Rights that would ensure the enjoyment of universally accepted human rights and freedoms.

The Foundational Values

The foundational values in Section 1 lie at the heart of the Constitution. They are so central that – unlike other provisions that can be amended with a two-thirds majority – they require a 75% majority for amendment.

The Republic of South Africa is one, sovereign, democratic state founded on the following values:

Human dignity,
The achievement of equality
The advancement of human rights and freedoms.
Non-racialism
Non-sexism.
Supremacy of the Constitution and the rule of law;
Universal adult suffrage,
A national common voters roll,
Regular elections
A multi-party system of democratic government
Accountability, responsiveness, and openness.

The Bill of Rights

This Bill of Rights is the cornerstone of democracy in South Africa. The state must respect, protect, promote, and fulfil the rights in the Bill of Rights.

The rights to housing, health care, food, water, social security, and further education are progressive rights. The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights.

The rights in the Bill of Rights may be limited only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom…

The Scheme of the Constitution

Preamble

Founding provisions (1-6)
Bill of Rights (7-39)
Co-operative Government (41-42)
Parliament (42-82)
The President and National Executive (83-102)
Provinces (103-150)
Local Government. (151-164)
Courts and the Administration of Justice (165-180)
State Institutions supporting constitutional democracy (181-194)
Public Administration (195-197)
Security services (198-210)
Traditional leaders (211-212)
Finance (213-230)
General provisions (231-243)

Schedules

National flag
Geographical areas of provinces
Oaths and official affirmations
Election procedures
Functional areas of concurrent national and provincial legislative competence
Functional areas of exclusive provincial legislative competence
Transitional arrangements