South Africa’smulti-partyconstitutionalnegotiationprocess Catherine Barnes and Eldred De Klerk

"…It is therefore important that as we put our vision to the country, we shoulddo so directly, knowing that people out there want to be part of the process andwill be responding, because in the end the drafting of the constitution must notbe the preserve of the 490 members of this Assembly. It must be a constitutionwhich they feel they own, a constitution that they know and feel belongs tothem. We must therefore draft a constitution that will be fully legitimate, aconstitution that will represent the aspirations of our people" .– Cyril Ramaphosa, Chairperson, Constitutional Assemb ly,

24 January 1995

South Africa’s diverse political parties – some ofwhich had a broad membership base andnumerous affiliated civil society organizations –

were at the centre of the negotiations to decide SouthAfrica’s political future culminating in a new Constitution.Although contested at times by the Inkatha FreedomParty (IFP), South Africa’s leaders chose to design andnegotiate the process by themselves without theguidance of an international mediator. The leadership ofthe two most powerful parties – the African NationalCongress (ANC) and the ruling National Party (NP) – werethe most influential in both instigating and shaping thenegotiation process and deciding its substantiveoutcomes. Throughout the long transitional process, they and the other parties engaged in a range of bilateral talks, seeking to resolve differences or makealliances to advance shared goals. Nevertheless, the main process was organized around formally constituted multi-party negotiating forums that allowedsmaller political groupings to voice their perspectives and help shape agreements. Over time, these forums became increasingly open to the media and thus underpublic scrutiny. Many of the political parties used theirmembership structures to consult with theirconstituencies on key issues in the negotiations and to ‘bring them along’ in the process, thus involving them indirectly in the negotiations and creating the foundations for a more inclusiverepresentative democracy.

Deciding the principles and structure of the negotiationprocess was as contentious as the substantive issues tobe addressed within it. The ANC wanted a unitary statethat would be a powerful instrument capable oftransforming the conditions wrought by apartheid, whileat the same time building in safeguards to protect rightsfrom illegitimate state intervention. From the outset, itdemanded an elected assembly to draft a newconstitution. It argued that a democratic state can only bebuilt on a firm democratic basis; the people, through theirelected representatives, must write their ownconstitution. The NP and other smaller partiesrepresenting minority constituencies feared that anelected assembly would negate the purpose ofnegotiations and result in majority rule withoutconstitutional safeguards to protect effective minority

South Africa

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South Africa’s multi-party constitutional negotiation process 27

participation in political decision-making. They insteadproposed a multi-party forum where all political parties –without regard to their electoral support – would agreeby consensus to a new constitution subject to popularapproval through a referendum. This dispute waseventually addressed through the formula of first holdinga multi-party constitutional conference where all parties,irrespective of the size of their constituency couldparticipate as equals to decide core constitutionalprinciples and the structure of a transitional government.Then the public would elect the parties to form a power-sharing transitional government and the delegates to anassembly that would draft the final Constitution. Themulti-party conference was called the Convention for aDemocratic South Africa (CODESA) and, after that forumcollapsed, the Multi-party Negotiating Process (MPNP).These formally constituted mechanisms becameincreasingly open to public scrutiny, creating theprecedent for the transparent and consultativeconstitutional drafting process. This helped to providewidespread public legitimacy for the process to createwhat has become known as the ‘new South Africa’.

CODESA: first attempts to negotiatethe transitionAt the end of November 1991, after repeatedpostponements, an All-Party Preparatory Meetinginvolving most political parties and homelandgovernments was held to plan CODESA’s structure andworking methods. Importantly the delegates agreed tothe procedure of ‘sufficient consensus’: the conventionshould seek consensus but, if it proved impossible, thechair would decide whether there was sufficientagreement to allow negotiations to proceed. Since anelectorate did not mandate the parties and the processwas designed to be as inclusive of parties as possible – nomatter how small their support base – it was agreed thatno decision would be taken on any matter unless thegovernment and ANC, at the very least, were inagreement. Nonetheless, agreement between only theANC and government was considered insufficient for adecision to be taken. Although the IFP in particular feltaggrieved by this principle and others contested itsappropriate application at various points during thenegotiations, this method created an incentive for themoderate parties committed to reaching an agreementnot to be held hostage by the extremes.

On 20 December 1991, 238 delegates from the 19participating parties together with nearly 1,000international observers gathered for the first plenarysession, CODESA I. Although most political groupingsparticipated, the Conservative Party (CP) on the right andAZAPO and the Pan-Africanist Congress (PAC) to the leftboycotted it. Women comprised only about 5 per cent ofthe delegates. Appalled, parliamentary veteran Helen

Suzman intervened to point out the imbalance,highlighting the parallels between gender discriminationand racism. Most of the parties thereafter made efforts toincrease gender representivity in the negotiations. Theplenary was mostly a ceremonial occasion to mark aformal commitment amongst the participating parties tonegotiate a settlement. The delegates agreed aDeclaration of Intent to guide the negotiators towardcreating a ‘united, non-racial and non-sexist state’protected by a Bill of Rights, with multi-party democracybased on universal adult franchise and a proportionalrepresentation electoral system. They also agreed toform CODESA as a standing institution to facilitate anegotiation process.

CODESA’s management structure and operationsThe first plenary established five working groups toaddress key issues and a Management Committee tooversee the process; it also decided that the secondplenary session would take place in March 1992. TheManagement Committee was responsible for the overallpolitical guidance of the process and consisted of onedelegate and one advisor from each party. To assist itswork, a secretariat and Daily Management Committeewere established, with administrative staff seconded bythe Department of Constitutional Development and theConsultative Business Movement The ManagementCommittee established several sub-committees toaddress important substantive issues. The first addressedthe representation of traditional leaders and otherswho applied to participate. Traditional leaders were

eventually accorded special, but not equal,representation in the negotiations channelled thoughfour provincial delegations.

Each party could nominate two delegates and twoadvisors to each working group. The five working groupswere created to address: (1) creation of a climate for freepolitical activity; (2) constitutional principles; (3) transitionalarrangements; (4) future of the ‘independent homeland’states; (5) timeframe and implementation. Working groupssat two days a week and Parliament sat the other threedays. Each group had a steering committee to manage theagenda and work programme. Groups prepared interimreports tabled to the Management Committee, whichwould eventually table agreed proposals at the CODESAplenary for approval and ratification. CODESA soonbecame the most important site of political activity and itsregularity helped to generate collegial working relationsbetween the negotiators.

Although the public was invited to make submissions onconstitutional principles to the working groups, CODESAmade little attempt to either educate the public about itswork or elicit the views of important groupings on the

28 Accord 13

substantive issues; delegates and their advisors were theprimary figures to develop options and negotiateagreements. Some CODESA members later criticized itslack of transparency and the South African CommunistParty’s Joe Slovo noted public perceptions of a“mysterious cabal”. Initial moves to open negotiations tothe press, however, were interrupted by a collapse of theprocess. It also became apparent in retrospect that thestructure of developing substantive proposals throughworking groups created impediments to developingintegrative ‘packages’ of agreements across issues. Itfurthermore meant that successes in one group but not in another placed strain on the entire process –particularly as no deadlock breaking mechanisms had been envisioned.

Breakdown of the CODESA processBy March 1992, the progress of the working groupshalted. Facing intense criticism from conservatives thatthe NP did not represent white voters, President De Klerkcalled a risky referendum to gauge the support of thewhite electorate. The NP won an overwhelming victory,confirming that the majority of whites supported anegotiated settlement. With its position greatlystrengthened, the NP returned to the processdetermined to hold its line against the ANC’s insistenceon installing an interim government in the near future. Topressure the parties to reach agreement in the workinggroups, the Management Committee set 15-16 May asthe date for the second plenary session in order to ratifyagreements to guide the next phase.

Yet by early April the process was beginning to flounder;parties were unable to reach a common formula oninterim governance and the principles for creating thenew state political structure. They agreed on the formula

of a transitional government and assembly to draft aninterim constitution but disagreed over the percentage ofvotes needed to adopt the constitution and contestedthe role of a potential second parliamentary chamber.The NP wanted a system that would give it an effectiveveto and maintain its relevance as a political force,whereas the ANC feared it would be forced to liveindefinitely with an interim constitution. The day beforethe plenary, Working Groups 1, 3 and 5 had reachedagreement but Working Group 2 on constitutionalprinciples remained deadlocked. The NP tabled a newproposal and the ANC called a consultation meeting forthe 85 unions and political, religious, and studentorganisations in the Mass Democratic Movement tofinalise its position. Yet at the two-day ‘CODESA II’ plenary,tensions between negotiators escalated under the glareof television cameras and journalist interviews. Repeatedadjournments were called in the hopes that WorkingGroup 2 could devise a breakthrough. But it neveremerged and the parties agreed to convene anotherplenary at a later point.

Many observers thought the NP’s refusal to compromisewas due to its over-estimation of its power following theMarch referendum. After the failure of CODESA II, the ANCdecided to demonstrate its power through the use of a‘rolling mass action’ of coordinated strikes and streetdemonstrations with the aim of forcing the governmentto agree to an interim government, despite fears offuelling the political violence. In mid-June 49 people werekilled in the ANC stronghold of Boipatong. This timeMandela held De Klerk personally culpable andsuspended all talks – both bilaterally with thegovernment and multilaterally through CODESA.

South Africa’s multi-party constitutional negotiation process 29

The business and international communities immediatelyvoiced their concern. Over the following weeks therewere a number of initiatives to bring in an internationalmediator. In mid-July, the UN Security Council held anunprecedented two-day debate on South Africa thatresulted in the appointment of a Special-Representativeof the Secretary-General, Cyrus Vance, to investigate theviolence and make recommendations on restarting talks.This soon led to the creation of a 50-member UNobserver mission and support for the National PeaceAccord (NPA) structures. The NPA was the only multi-party forum to remain operational throughout this periodand provided continuity and a space for partyrepresentatives to meet when other avenues forcommunication were blocked, helping to stabilize thepolitical conflict.

Multi-party Negotiating ProcessAfter CODESA’s collapse, De Klerk and Mandelaexchanged memoranda and the NP considerablysoftened its demands. By August 1992, the ANC hadagreed to establish a ‘channel bilateral’ for maintainingquiet dialogue, nominating Cyril Ramaphosa to hold talkswith the NP’s Roelf Meyer. They made considerableprogress and on 26 September Mandela and De Klerkheld a summit to sign the Record of Understanding. Theyagreed on the principles of an interim government at thenational and regional levels empowered by an interimconstitution. They also agreed on a formula for an electedassembly that would serve as an interim parliament anddraft a constitution based on principles agreed in priormulti-party negotiations. They agreed that to improveefficacy, in future negotiations, the ANC and NP wouldfirst reach agreement on a bilateral basis before going toother parties for multilateral negotiation: in sum, otherscould either agree to be a part of the process or be left behind.

The agreement appalled most right-wing parties –sparking the IFP and CP to join with a number ofhomeland governments and Afrikaner parties to form theConcerned South Africans Group (COSAG). They rejectedthe principles outlined in the agreement and demandedit be scrapped. In the following months, Buthelezithreatened secession but the move was met with intensediplomatic pressure that revealed his isolation. Theagreement also surfaced fault lines within the NP and theANC over both tactical and substantive principles. Thepro-negotiation faction within the NP leadership waseventually able to predominate. The ANC engaged inconsultations with constituents and eventuallycommitted itself to a positive-sum negotiating positionbased on a transitional period of power-sharing, thusdecisively moving away from a maximalist, zero-sumstrategy aiming at the immediate elimination of the NP as a political force.

Towards the end of the year, ANC and NP teams met forseveral days in a secluded game lodge – an atmospherethat proved conducive both to developing politicalformulas and humanizing the working relationships. At asimilarly structured meeting in January and successivebilaterals thereafter, they formulated a joint negotiatingposition to guide their participation as a bloc in a futuremultilateral forum. The COSAG members becameincreasingly aware that if they did not participate in sucha forum, they would have little influence on theoutcomes. By January 1993 they agreed to resume multi-party talks but wanted to have a voice in the creation ofthe new negotiating forum – even if many of its termshad been predetermined by the ANC and NP. ANegotiation Planning Conference was held in earlyMarch, where the political parties were able to restructurethe process and address some of the previous objectionsto CODESA. Agreements reached in principle in theearlier forum would be a guide but were non-binding.Reluctant to use the name CODESA and unable to agreeto a new one, on 1 April 1993 what became known as theMulti-party Negotiating Process (MPNP) opened at theWorld Trade Centre. It convened 26 participating partiescomprising political groupings, national and homelandgovernment representatives and traditional leaders. Forthe first time the PAC, CP and Volksunie participated; onlythe far-left AZAPO and several extreme Afrikaner partiesrefused to join.

MPNP structures and working methodsThere were a number of innovations in the MPNPstructure. The highest decision-making body was the208-member, 26-party, parliamentary-style plenary. Butthe process was focused around a Negotiating Councilthat met three to four days a week to developagreements that would be ratified by the plenary, whichmet whenever necessary. The Council was composed oftwo delegates per party – at least one of whom had to bea woman – and two advisers. The original idea for aNegotiating Forum situated between the Plenary andCouncil was deemed unnecessary and its responsibilitiesinstead devolved to the Council.

Instead of presenting their views orally in the Council,parties prepared written submissions that were firstconsidered by a series of issue-specific TechnicalCommittees consisting of non-party political expertsappointed by the Council. They drafted reports thatsought to take everyone’s views into account, seekingcompromise formulas and methods for breakingdeadlocks. Their reports were considered by the PlanningCommittee, which drafted resolutions for considerationby the Council. The Planning Committee assumed mostof the same roles as CODESA’s Management Committee.It consisted of 10 Council members, appointed in theirpersonal capacities rather than as party representatives,

Sitting of the CODESA at the World Trade Center,Kempton Park, November 1993.Source: Henner Frankenfeld/PictureNET

and was chaired on a rotating basis. It tended to set theoverall negotiating agenda and oversaw the work of twonon-partisan commissions on the demarcation of regionsand on national symbols. The process was administeredby the Consultative Business Movement, which providedan independent secretariat and administrative support.

Although the Plenary continued to make decisions by‘sufficient consensus’, strategies to address thesubstantive details of the negotiations were developed inthe Technical Committees and the tough politicaldecisions were worked out in the Negotiating Council.Bilateral bargaining behind-the-scenes complementedthese formal processes.

Violent attempts to derail the negotiationsShortly after the MPNP began, an extremist groupassassinated the popular militant leader Chris Hani.Amidst the outpourings of grief, anger and frustrationthat threatened to engulf the country in protest andviolence, Mandela appealed for calm; the leadershiprecognized the killing as an attempt to derail thenegotiations. The ANC, NP and other moderate partiesrealized that they needed to move quickly to reachagreements that could begin to bring home the fruits ofthe transition, most visible of which would be thecountry’s first non-racial democratic elections. Toexpedite the process, the Negotiating Council agreed a

new Declaration of Intent, noting the urgent need toreduce violence and inspire broad public confidence inthe process and a clear vision of the milestones markingthe transition process. Senior leaders in the CBM, alarmedat the uncertainty inherent in protracted negotiationsand the escalating instability, met with key politicalleaders to demand swift settlement; a demandunderscored shortly afterwards by a similar initiative fromthe COSATU labour movement.

At the beginning of June 1993, the Negotiating Councilagreed to set the election date for 27 April 1994. Theplenary had to ratify the date, which generatedtremendous pressure to bargain over the principlesguiding the constitution-making process. To keep theCOSAG alliance in the process, the ANC made thesignificant concession to structure the state on thenational, regional and local levels, which would each havedemocratically elected governing bodies. Yet when theANC and NP blocked the IFP’s demand for a debate on afederal constitution, the COSAG group staged a walkout.Although most parties eventually returned, the IFP andCP remained largely outside the process. Following anMPNP decision to reject an Afrikaner homeland, severalhundred white paramilitaries stormed the negotiatingchambers at the World Trade Centre in late June,roughing up the delegates. Though shocking, it mostlyserved to undermine the image of the perpetrators.When the Plenary – minus most of the COSAG group –finally ratified the election date, it sparked a wave of

PlanningCommittee(10 membersappointed in personal capacity)

NegotiatingCouncil(4 delegates + 2advisors per party)

Negotiating Forum(did not becomeactive)

Plenary(10 delegates perparty for 208 members)

Administration(Consultative BusinessMovement)

Commission onNationalSymbols(non-partisan)

Commission forthe Demarcationof Provinces(non-partisan)

CODESA II(plenary)

DailyManagementCommittee(7 members)

SecretariatAdministration(Secretarial services,travel, conventionmanagement, finance)

Sub-committees

Creation of climate for free political activity

Constitutional principles

Transitional arrangements

Future of TBVC states

Timeframe and implementation

Declaration of Intent

Work ing groups

Participation ofTraditional Leaders

Gender AdvisoryCommittee

Management Committee(38 members - 2 from each party)

CODESA’s structures

Multi-party negotiating process structures

Violence

Fundamental Human Rights

Constitutional Issues

Discriminatory Legislation

Transitional Executive Council

Technical Committees(5-6 non-partisan experts)

Independent Media Commission

30 Accord 13

South Africa’s multi-party constitutional negotiation process 31

violence throughout the country. Yet throughout thisperiod, the ongoing violence appeared to deepen themoderate parties’ commitment and bound them furtherto the negotiation process.

From July to August, the MPNP engaged in intensenegotiations over various draft interim constitutions andthe structure of the Transitional Executive Council thatwould be the central governing authority. The IFP, theAfrikaner AWB and their allies – now regrouped as the‘Freedom Alliance’ – continued to reject the process. Theydemanded a summit of select leaders to negotiate thefinal constitution prior to elections. Violence escalatedamidst ‘war talk’ by both the far left and especially the farright. Nevertheless, in the early hours of 18 November1993, the Negotiating Council adopted a comprehensivepackage agreement – including an electoral act and theinterim constitution giving legal basis for the transitionalinstitutions and specifying non-negotiable constitutionalprinciples – that became the basis for South Africa’sdemocratization pact.

The leaders were careful to leave the door open to thePAC, AZAPO and the Freedom Alliance to join theagreement and in the following months sought to bringthem on board. Nevertheless there were real fears thatthe right-wing forces would organize armed resistanceleading to civil war. Furthermore, there were fears thatSouth Africa’s future would be deeply compromised ifmajor constituencies were not represented in theelections which would choose parties for the transitionalgovernment of national unity and delegates to theassembly that would write the final constitution. If theywere not involved in the process, they might then work to undermine it.

In the first months of 1994, there were numerous bilateralmeetings with the IFP and AWB to prevent a boycott ofthe elections and to bring them back into theconstitution-making process. In March, the ANC and IFPagreed to international mediation led by former USSecretary of State Henry Kissinger. Althoughdisagreement over the terms of reference meant theinitiative never got off the ground, it effectivelyfragmented the Freedom Alliance bloc. In March, the ANCreached agreement with the newly formed Afrikaner-based Freedom Front on how they could pursue anAfrikaner ‘volkstaat’ (a self-governing entity) through theconstitutional process. Civil unrest in theBophuthatswana and Ciskei homelands led thegovernment to reincorporate them into South Africa.With the conservative bloc in disarray, the ANC, NP andIFP concluded an agreement several days before theelections, whereupon the IFP agreed to participate. Thenthe Freedom Front also agreed to take part. In the end, allthe main political parties participated in the electionsheld 27-29 April 1994. Despite some minor squabbles,logistical and registration problems, and queries over the

absolute accuracy of the results, the elections wereremarkably peaceful and brought out the overwhelmingmajority of the eligible public to cast their vote.

Constitutional Assembly structures andworking methodsThe Constitutional Assembly consisted of both houses ofthe newly elected Parliament: the National Assembly andthe Senate. Its 490 members were drawn from sevenpolitical parties, represented proportionally inaccordance with their share of the vote. To preventindefinite delays, there were numerous deadlockbreaking measures and delegates had to finalize a draftwithin two years. The new constitution had to complywith the 34 principles agreed in the MPNP and pass by atwo-thirds majority vote; failing this, it would have to passthe assembly by a simple majority and then be put to anational referendum to pass by a 60 per cent majority.The Constitutional Court would test the text approved bythe Constitutional Assembly and thus serve as the onlyand final arbiter on whether it complied with the agreed principles.

One of the remarkable features of the process was thelevel of consensus achieved, despite the disparity in theproportion of seats held by the parties – with the ANC atalmost 64 per cent, the NP a little over 20 per cent, the IFPalmost 10 per cent and the remaining four partiescomprising the remaining 6 percent of the seats. Afteryears of multi-party negotiations, in which the parties hadexperienced a steep learning curve, the ConstitutionalAssembly was able to crystallize a consensual approach. Itwas based on both the flexibility of the major players whowere committed to seeking ‘win-win’ agreements andthe design of the negotiating structures that generatedworkable proposals. The level of camaraderie amongstthe negotiators and skillful administrative supportenhanced these attributes to create a conduciveenvironment. Although the IFP ultimately withdrew fromthe process, the Constitutional Assembly votedoverwhelmingly in favour of the final amended text on 11October 1996.

The Constitutional Assembly was guided by a set ofvalues that were manifest in mechanisms for publicparticipation built into the process. The Assembly’s workwas organized to satisfy three fundamental principles:inclusivity, accessibility, and transparency.1 To ensureinclusivity, it was agreed that the constitution had to bethe product of the ideas of all the major elements ofsociety, grouped as three categories of role players: therepresented political parties; parties outside theConstitutional Assembly together with organised civilsociety; and individual citizens. To encourageaccessibility, the parties agreed that it was not enough tomerely invite submissions; it was necessary to solicitviews proactively. Transparency was promoted by

32 Accord 13

allowing all meetings of the Constitutional Assembly andits structures to be open to the public and all materials –including minutes, reports and submissions – madeaccessible through the internet. Furthermore, the newconstitution would be drafted in plain speech so thatordinary people could understand it, translated into theeleven main languages and disseminated through amassive public education programme.

The structuresSix theme committees of 30 appointed members eachwere formed to address subsets of the 34 constitutionalprinciples. The committees respectively covered: (1) thecharacter of the democratic state; (2) the structure ofgovernment; (3) the relationship between levels ofgovernment; (4) fundamental rights; (5) the judiciary andlegal systems; and (6) government institutions. The mainfunction of the theme committees was to ensure theinclusiveness of the process by receiving the views andsubmissions of all the role players. The committees weretherefore the initial interface between the ConstitutionalAssembly and the public. A technical committeeconsisting of three to four experts supported each themecommittee and various ad hoc expert committees wereappointed to address specific subjects.

The Assembly created a Constitutional Committee as themain negotiating and coordinating structure, comprising44 members appointed by parties in proportion to theirrepresentation and including their chief negotiator. Thishelped to ensure that the smaller parties, who did nothave enough representatives to always field members inthe theme committees, were not disadvantaged. TheConstitutional Committee’s smaller size and ability tomeet frequently made it the most important element ofthe decision-making structure. It formed a ManagementCommittee charged with managing the day-to-dayprocess of the negotiations – including the importanttask of ensuring the structures worked according to planin order to meet the timetable deadline. When it becameclear that certain issues were the subject of seriousdisagreement in both the large theme committee andConstitutional Committee forums, a ten-member sub-committee was established to address these topics – witha membership that varied according to the issues underdiscussion. The Assembly also established theCommission on Provincial Government to oversee thecreation of this new governing system and the VolkstaatCouncil to enable proponents of this idea to developproposals for establishing a Afrikaner self-determiningentity constitutionally. An independent panel ofconstitutional experts was established with the primaryaim of helping to resolve conflicts, avoiding deadlocksbetween parties and providing advice on technical issues.

Public participation programmeTo enable public participation, the parties swiftly agreed athree-phase work programme that included a first phaseof activities to elicit issues to be considered in preparing adraft, followed by a second phase where the publicwould be invited to comment on the draft text, and athird phase when the Constitutional Assembly wouldfinalize and adopt the new Constitution.

The first phase started in December 1994. A MediaDepartment was immediately established to initiate print,radio and television programmes about the work of theAssembly, as well as a national advertising campaign.Much of the messaging was based on the slogan ‘You’vemade your mark, now have your say’. Agencies werecommissioned to conduct a survey to assess thepenetration of the campaign after three months, whichrevealed areas in need of further attention and resulted ina Constitutional Education Programme.

Once the negotiators in the theme committees reachedagreement on the areas to be covered, they placedadvertisements in major newspapers invitingsubmissions and organised workshops and consultationswith affected sectors to elicit views. Every South Africanwas invited to share their thoughts by sending writtensubmissions, making oral statements at a public meeting,phoning the Constitutional Assembly talk line, or usingthe internet. Through a face-to-face outreachprogramme, the Assembly, assisted by local civil societyorganizations, targeted communities that would find itdifficult to access information through print or electronicmedia – particularly in remote areas or communities withlow literacy rates. For many of these, it was the first timethey were able to interact directly with their electedrepresentatives. It elicited nearly 1.7 million submissions –most of which were in the form of signatures on petitions– and more than a thousand workshops, briefings andmeetings reaching approximately 95,000 people.

The submissions were collated into reports, noting theconvergence of ideas and agreements as well ascontentious issues and ideas for addressing them. Thesubmissions soon generated a long list of new issues,sparking an important debate over which issues shouldbe addressed in the constitution and which should beaddressed through ordinary legislation. This dilemmawas partially addressed by the panel of constitutionalexperts, which drafted criteria for considering the issuesfor inclusion. Of the 13,443 written submissions – rangingin size from a few handwritten lines to printed reportsover a 100 pages long – about 10 per cent were fromorganizations, about 0.6 per cent from political parties,and the vast majority from individuals. Yet adisproportionate share of the submissions were from thewell-educated, the middle class, and professionals,

33South Africa’s multi-party constitutional negotiating process

academics and political activists. This posed dilemmasabout whether the submissions should be regarded asrepresentative and the weight they should be given inthe context of negotiations between democraticallyelected parties. In a country with such enormousdisparities in education and access to information andother resources, issues of representativity were at theforefront of concern.2

In the first phase, responses were copied and sorted bythe secretariat and then forwarded to the experts in therelevant technical committees. They collated the subjectsand prepared summary reports for consideration by theirtheme committees. Yet the vast quantity of input createda major challenge in information management –particularly for Theme Committee 4, charged withaddressing the rights issues that were the main subject ofthe submissions. It seems that the submissions fromorganizations with links to parties or with specializedknowledge of the issues were given seriousconsideration. Submissions from individual citizens werenot utilized systematically by the drafters in the firstphase, in part because of the sheer volume of materialand in part because some issues were seeminglyunrelated to the negotiating agenda.

In the second phase of consultation, during December1995 and January 1996, over four million copies of theworking draft constitution were distributed in the secondphase of consultation, along with explanatory articlesand graphics. The draft attracted about 250,000submissions that were more focused and betterprocessed. They were summarized and linked to specificarticles in the constitution, making them more accessibleto representatives negotiating a revised draft, thusincreasing the probability they would be considered.

The Constitutional Assembly deliberations were open tothe public and well covered by journalists. But in the latestages of negotiations, when time was running out andagreement still elusive, the parties held frequent bilateraland multilateral meetings in private. This move wascriticized by some civic organizations and the mediaparticularly objected to the closure of multilateralmeetings. Yet privacy enabled the negotiators to makeconcessions without being revealed in the media asbetrayed their constituencies; privacy also reduced thetemptation to publicly score points in the ongoingdebate – an experience that revealed some of thetensions between the needs of principled negotiationsversus those of constituency politicking.

The Assembly was concerned to create an awareness thatwould help make the new Constitution a reference pointfor all South Africans on the foundation of theirdemocracy. It disseminated 7 million copies of the finaldocument in all 11 official languages, accompanied by an

illustrated popular version. There were few opportunitiesfor formal debate between the Assembly and the public,yet there was significant informal discussion amongSouth Africans, both in public and in private. Surveysindicated that a quarter of all adults had discussed theConstitutional Assembly and related issues with friends orfamily. The constitutional debate and the previousnegotiations helped to legitimize and underscore theimportance of democratic processes as the way toaddress political conflict. CASE’s survey also indicated thatthe public participation initiatives helped to create astrong sense of ownership of the Constitution among thepublic, the majority of whom felt they had an opportunityto contribute its creation – despite some lingeringscepticism amongst those who perceived they had themost to lose in the new system.

ConclusionThe promise of CODESA and the MPNP was for politicalaccess and power to all South Africans and for a politicalmachinery to achieve this promise. The mechanismsemployed relied on the broad membership base of thepolitical parties and their reach into the grassroots ofSouth Africa’s diverse communities as the principalmeans of opening up the transition process to publicinvolvement. The caution is that this mode ofchannelling and enabling popular participation hashistorically been viewed by the ANC as a means to bolsterthe role of the state under its leadership, rather than as anindependent force, potentially contradicting, challenging,or forcing it to rethink its policies. The post-1994 politicalscenario has seen government and civil society start aproductive and co-operative relationship in the fields ofservice delivery and, to a lesser extent, in policy-making.Yet today, many in government see civil society’s‘watchdog’ role as a thorn in its side. Nonetheless, SouthAfrica is among the few countries in the world where theruling party openly expresses a commitment to civilsociety participation – a factor that can be used by civilsociety to strengthen its role. As in the turbulent times ofapartheid, civil society in post-1994 can continue to be aforce for making the government of the day accountableto its constituencies. Now that South Africa has created asystem of government enabling all citizens to vote andgain access to power, the challenge is to organizepeople to influence the way power is conceptualizedand exercised. This is the challenge for public

participation today.

1For further information, see Hassen Ebrahim. The Soul of a Nation:Constitution-Making in South Africa. (Cape Town: Oxford UniversityPress, 1998)

2For further analysis, see as Siri Gloppen South Africa: the Battle overthe Constitution (Aldershot, UK: Dartmouth Publishing Company, Ltd. 1997)