The history of constitutions in SA

How is it possible, given SA’s much-lauded constitution, that there is still a "sea of poverty" around us? It’s a question tourism minister Lindiwe Sisulu posed in a controversial opinion article early this year. Some would argue it’s a question she had every right to ask. After all, it’s just over 25 years since Nelson Mandela signed the constitution into law; why have many of the socioeconomic rights enshrined in that document failed to materialise?

Of course, it’s a question that is probably better directed at, say, someone who has spent 18-odd years in cabinet, 11 as the minister for housing. At someone like Sisulu, in other words.

In a reformulation of Monty Python’s immortal "What have the Romans ever done for us?" we may well ask: "What have constitutions ever done for SA?"

The Cape’s ‘Magna Carta’

The first real nod to modern constitutionalism in SA came in the Cape Colony in 1828, with the passing of Ordinance 50, which extended civil liberty to "free persons of colour". At the time, antislavery campaigner, politician and editor John Fairbairn called this "the real Magna Carta of the coloured population of the Cape", writing: "All classes of the community will soon feel the advantage of equal rights without which human society is but an organised system of plunder and injustice."

But Fairbairn soon realised the law was something of a sham; instead of providing social justice, it simply perpetuated "two distinct nations", recognising a distinction between Europeans and people of colour.

Fairbairn, in contrast, believed there should be "one law for all free persons" and laws should not be constructed "to suit the supposed prejudices or interests of a particular class".

In this, he was a classical liberal, seeing laws as conferring "negative" or "traditional civil rights" — those that "demarcate the field in which the state is required not to interfere with the individual", law professor Denis Cowen noted in the 1960s.

So, for example, these laws might provide the right to a fair trial, freedom of association, of speech, of religion.

Fairbairn set his heart and mind on bringing these rights to all races in the Cape. Aided by Irishman William Porter and Sir Andries Stockenström, the grandson of a slave, he drove the adoption of a constitution allowing for nonracial franchise in the colony in 1854.

The constitution, essentially drawn up by Porter and ratified by the colonial secretary, provided for a nonracial franchise, the qualifications for which were ownership of land to the value of £25 or an annual wage of £50.

This constitution would last until the 1890s, when Cecil John Rhodes set the gold standard of political attempts to degrade constitutional rights.

In 1891, Rhodes and sections of the Afrikaner Bond tried, unsuccessfully, to pass the "strop" bill, reintroducing the whipping of servants and children — a law that had been abolished by Ordinance 50 in 1828.

As prime minister, Rhodes successfully pushed through the Franchise & Ballot Act (1892), which raised the franchise qualification to £75 — thus excluding many coloured and black male voters.

Tengo Jabavu’s newspaper, Imvo Zabantsundu, raised its concerns over Rhodes’s tampering with the constitution. But it was the black poet and journalist Robert Grendon and his Coloured Peoples’ Association who agitated most aggressively against the legislation, organising multiracial protests and sending a petition with more than 4,000 signatures to British prime minister William Gladstone.

All, of course, was to no avail.

Boer traditions

In the 1850s the two Boer republics also drew up constitutions. Theirs offer a lesson both in the separation of powers and in entrenched vs flexible clauses.

The Orange Free State’s was a rigid constitution, offering a number of fundamental civil rights to white men: the rights to peaceful assembly, equality before the law and property, for example, could only be amended with the consent of three-quarters of the Volksraad. Importantly, the constitution also recognised the separation of powers between legislature and judiciary. Though the Volksraad was "the highest legislative authority", it wasn’t sovereign. The judiciary was independent and the Volksraad did not intervene with its workings.

As the historian Leonard Thompson states, the constitution bore a striking resemblance to that of the US, and had "an admirable tradition" in these respects.

The same couldn’t be said for the constitution of the Zuid-Afrikaansche Republiek (ZAR), or Transvaal, written at a similar time. As Thompson notes, it "bore the imprint of the voortrekker, whose knowledge and experience were necessarily limited". In fact, "the judiciary became the creature of the government of the day, and the legislature passed laws on any subject, including constitutional amendments, in the simplest possible way".

Transvaal president Paul Kruger, for his part, simply rode roughshod over the constitution. When his tenderpreneur friend Hugo Nellmapius was imprisoned for embezzlement, for example, Kruger overruled the courts and granted him a pardon. The chief justice issued a warrant for the rearrest of Nellmapius, but after a long tussle the appeal court eventually set the conviction aside.

The flexibility of the ZAR constitution also enabled Kruger to stave off the political threat of the Uitlanders (foreigners) during the gold rush.

Under Law 4, passed in 1890, an immigrant could not win election to the presidency or Volksraad until he had resided in the republic for 14 years. Of course, there was never even a passing thought of offering coloured, black or Indian residents the vote. If anything, the ZAR’s flexible constitution "became a means which enabled one racial group to maintain a virtually exclusive control over a multiracial state", Thompson writes. It would not augur well for the merging of SA’s four territories into a single state.

Divided union

Marrying the constitutional traditions of the Cape, Natal, Orange Free State and Transvaal was no easy task for the negotiators at the National Convention of 1908/1909. And largely because of these difficulties they often chose the path of least resistance.

One of the catastrophic errors was agreeing to a flexible constitution, where a simple majority could change most laws surrounding the rights of citizens. Both Kruger and Rhodes had shown the dangers of this type of constitution. And it was certainly not the case that the delegates didn’t recognise a clear and present threat. They would, after all, entrench two clauses.

The major sticking point involved the form the national franchise would take, with four options on the table: all men born in the union and over the age of 21, regardless of colour, would have the vote; white men would have the vote, as well as black men who could pass a "civilisation test"; only white men would have the vote; or each province would keep its own voting traditions.

After a heated debate, the fourth option was chosen, with the Cape’s "colour-blind franchise" protected until such time as a two-thirds majority of a joint sitting of both houses of parliament decided otherwise. The equality of English and Dutch (later Afrikaans) would also be protected by a two-thirds majority.

What the franchise decision meant, as retired chief justice James Rose Innes noted in the late 1920s, was that "in the Transvaal and Free State any white moron can vote, but no coloured or black man [may do so], however wealthy … he may be".

What was more, the liberal delegates should have realised that even a clause protected by a two-thirds majority left the Cape franchise in a desperate position. If all the racist politicians of the Transvaal, Orange Free State, Natal and the Cape so chose, they could breach two-thirds without breaking too much of a sweat.

And so it was, with the rise of JBM Hertzog and his National Party (NP), that a real threat arrived. An early attempt in the 1920s by Hertzog to alter the Cape’s franchise was thwarted by Jan Smuts, because it was "a dangerous leap into the dark". By 1936, however, Smuts had put such fears behind him. When his SA Party and Hertzog’s NP fused, a two-thirds majority was in sight. With Hertzog leading the way, parliament passed the Representation of Natives Act by 169 votes to just 11, effectively removing all black people from the Cape voters roll.

With the rise to power of the Herenigde Nasionale Party under DF Malan in 1948, civil rights came under attack.

As University of Cape Town public law professor Hugh Corder puts it: "The apartheid regime unleashed its massive programme of race-based social engineering in the early 1950s, and parliament enacted increasingly invasive measures in the name of the preservation of ‘state security’."

Freedom of political association was ended. The various states of emergency badly compromised freedom of the press and speech, as well as effectively ending the right to a fair trial.

The NP then turned its attention to the Cape voters roll, where it would take six years of Krugeresque manipulation to remove the coloured right to vote.

The one organ of state that stood against the move was the appeal court. But with the passing of the Appellate Division Quorum Act in 1955, the Nats simply increased the size of the court, appointing five judges who were politically committed to apartheid.

With these men in place, the government passed the Senate Act via a simple parliamentary majority, increasing the size of the upper legislative house while ensuring the Nats would be able to elect a majority of the senators. With some political sleight of hand, the NP miraculously increased its control of the senate, from 25% to 87%, and with this attained a two-thirds majority in both houses.

There was little that could be done when the constitutional validity of the act was tested in the now packed and captured appeal court.

Only judge Oliver Schreiner refused to go along with the NP’s political manipulations, writing a dissenting judgment.

The notion of separation of powers was effectively over. And SA was now, constitutionally speaking at least, not very far from Kruger’s ZAR.

Verwoerd at the helm

What had foreshadowed many of these attacks on civil liberties was a draft republican constitution, drawn up by right-wing academics, including HF Verwoerd, in 1941. It went further than the NP eventually did in the 1950s, and placed the state president above parliament, making him "only responsible to God".

It also reduced English to a "supplementary official language" and directed that the media not "undermine the public order or good morale of the [imagined] republic".

When Verwoerd came to power in 1958, this republican dream became his focus. In 1960 he called a referendum to decide if SA should abandon its legal ties to Britain and become a republic — a decision falling in his favour when 90% of the white electorate turned out, with 52.14% voting "yes".

The constitution that was subsequently drawn up bore little resemblance to Verwoerd’s 1941 draft. If anything, it was almost a carbon copy of the SA Act it replaced; the only significant change was that a state president replaced both the governor-general and the British monarch. Much like the latter, the president would not wield any significant political power.

This was the state of affairs until the early 1980s, when prime minister PW Botha made a desperate bid to include coloured and Indian voters in the apartheid laager while retaining control.

The "tricameral" constitution of 1983 brought coloured and Indian South Africans into parliament — but in separate houses. With a ratio of four white MPs to every two coloured and every one Indian MP, the white house would always come up trumps.

Central to the new constitution was the concept of "own affairs" and "general affairs". In what became a bureaucratic farce, marriage officers, for example, became a white "own affair", while volkspele (Afrikaner folk dances) became a general affair.

As MP Helen Suzman put it, "though the new constitution was supposed to replace the Westminster system, it retained its worst features — the high degree of power and the ‘winner takes all’ electoral system — and omitted the best — universal adult franchise under the rule of law".

A step in the right direction

When negotiations for a free democratic SA began in 1990, everybody realised the new constitution would have to be radically different from its predecessors. Aware of its own history of constitutional manipulation, the NP initially demanded a 75% constitutional amendment clause, but the ANC whittled that down to a two-thirds majority in most instances.

In its interim form, the new constitution set up a Constitutional Court with powers of judicial review. Initially both the ANC and the NP agreed to have the president of the country appoint the judges.

However, the Democratic Party’s Tony Leon objected, fearing a repeat of history. It was finally agreed that the judges would be drawn from a list of people submitted to the president by the Judicial Service Commission. (Leon would not have conceived of the farce that would unfold at that commission three decades later.)

It would take almost six years of negotiation and drafting for the final constitution to be signed into law. At heart it was an attempt to correct the wrongs of the past and protect the people against the abuses of government. To that end, it would include a bill of rights, offering equality before the law, as well as setting certain limits on states of emergencies.

But along with these protections of classical rights came, for the first time in SA history, "positive rights". These made it the government’s duty to provide socioeconomic benefits including "adequate housing", "sufficient food and water" and "basic nutrition, shelter, basic health-care services and social services" for children.

As many commentators suggest, these rights were a blueprint for the imagined ethical and political future of the country.

However, just how they could be substantively upheld was always going to be problematic. Though the courts have at times successfully intervened — in 2002, for example, the Constitutional Court ordered the government to make antiretroviral drugs freely available to pregnant women — delivery of these rights is not in any real sense in the hands of the judiciary. It’s the responsibility of the government – of people, say, like Sisulu.

As Cowen suggested back in the 1960s, it is the character of the people for whom the constitution is written that ends up making the difference. In this regard, democratic SA has been both a great success and a great failure. The pushback to Jacob Zuma’s almighty attack on the constitution has shown there is a will to resist the actions of what Cowen called "the tyrant". And, unlike apartheid, the capitulation of the political and judicial classes has not been complete.

It took six years of stratagems and manipulation for the Nats to grind down one entrenched clause of the SA Act. It took someone like Zuma a decade to more indirectly degrade and weaken the constitution. His victories, though damaging institutionally, were far from convincing. Through it all, our constitution has remained intact. It is now, as Cowen suggested, down to the people’s character to continue to uphold its values.

Blackman, with Nick Dall, is the author of Spoilt Ballots: The Elections that Shaped South Africa, from Shaka to Cyril (Penguin Random House)