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This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

The Constitutional Issues

An interview with Kader Asmal

Kader Asmal is a Professor of Human Rights Law at the University of the Western Cape.

He has recently returned to South Africa, having been a Senior Lecturer in Law at Trinity College, Dublin, and a Banister at King's Inn, Dublin. He began teaching at Trinity College in 1963.

A member of the ANC's Constitutional Committee and of its National Executive Committee, Professor Asmal has been in exile for over thirty years. He was a founder member of the British Anti Apartheid Movement in 1960, and of the Irish Anti Apartheid Movement from 1963. He was chairman of that organisation from 1972 onwards.

He has published three books on legal issues, has contributed chapters to another 10 books, and has written over40 articles. Much of this has been on South Africa.

MONITOR: In this interview I'd like to cover points of similarity, and some differences, between the recently released constitutional positions of the African National Congress, the Democratic Party and the National Party.

There seems on the surface to be nine points of agreement, of common ground, between the ANC, the DP and the NP.

The first point of agreement appears to be an acceptance of bicameralism - that South Africa should have two chambers of Parliament.

KADER ASMAL: Let's look at the Upper House.

In the NP proposals, the Senate would be partly racist in content - there can be no doubt about that. For the NP, the Senate would be comprised of regional representation, partly elected indirectly by local authorities. These local authorities will have electoral systems that will ensure representation from property holders, ratepayers and existing franchise holders - in this way, the NP Senate has a racist component.

If, for the NP, the Senate is in fact to represent regions in that way and is to have veto powers, there is no common ground between the ANC and the NP.

This will represent a constitutional crisis of enormous dimension. To present a very rigid constitution which particularly represents chauvanist ethnic interests, this can only lead to the type of constitutional crisis experienced in other countries, for example Cyprus. To associate political power in one way or another with ethnicity, however discretely, and in the process to give the Upper House, the ethnic house, veto power is totally unacceptable.

Our view is that the National Assembly, directly elected, is the repository of legislative power, and which could thus bring about reconstruction and development in South Africa. To give co-equal powers (even the DP proposes that, apart from fiscal matters, the Upper House can over-ride the National Assembly) - that is the recipe for permanent constitutional crisis.

We in South Africa will be very lucky if we can move from our present illegitimate, traumatic regime to a new, democratic regime, and in the process construct a constitution that will last for 15 or 20 years without needing amendment. An altogether rigid constitution may not be helpful.

Thus, the apparent convergence of the ANC and the NP on this item may be more apparent than real!

Item 2 - That the Lower House should be the engine of legislation and that its members should be elected by universal franchise, chosen by some as yet unspecified system of proportional representation, thereby entrenching both regular elections and multi-party democracy.

It's a sine qua non that we should have multi-party democracy in south Africa, and regular elections.

We'd like an open, non-bureaucratic, accessible legislature.

We don't subscribe to the consensus-seeking standing committees that some members of the DP are obsessed with. We prefer the USA's model of standing committees. There these committees take evidence in public, and are obliged to hear involved parties. This can be a time-consuming process, sure, but it is a recognition of the need for civil society and thus we support it.

As far as electoral systems are concerned, the ANC in its discussion document opts for proportional representation on a list system, to allow maximum participation by people.

The present, British system is unfair - witness just one example: the NP got over 60% of white votes cast in only one of the last six elections - and, in 1989, the NP polled a minority of votes cast. The composition of the legislature certainly does not reflect this, at best, weak majority of the NP. There is now a total disproportion between votes and seats.

We opt for a PR list system, which will enable, to take just two examples, the DP and even the Conservative Party (KP), a fairer chance of representation. The KP's vote is dispersed throughout predominantly rural and small urban areas. The DP's vote is mostly in the 4 large urban conurbations. But the DP got 450 000 votes in 1989 - a lot of votes - more than all the parties of the House of Reps and of Delegates put together.

We advocate a regional list - and, if parties like the DP can't get regional representation, then we opt for a totalling of the national vote, and thereby they get a second chance at representation.

We say that on a PR list a threshold of 2½ or 3% is low enough to discard the minnows - a 5% threshold may be too high, and could cause immobilism.

Here it is the victims of apartheid consciously embracing a fairer system - the British system is a 2 or at most, 2½ party system. Our proposals of a combination of a regional and a national PR list, are much fairer.

Third point of apparent common ground between the ANC, the NP and the DP.

That the Upper House should be more contemplative, and should be composed by a second system of election and/or nomination which makes some type of concession to regional representation.

My view, and the ANC's, of the Upper House, is that it should act as the Chamber of Human Rights. It should be the body that receives the reports from the Human Rights Commission, from the regions, and from the Ombud.

Further, it should have an important role in appointment procedures. It should appoint judges, for example, and also the Commander-In-Chief of the army, the navy and the air force. This would be a confidence building measure - the horrible history of apartheid is that apartheid's cronies, the butchers of Angola, got appointed to very senior military positions without any public dialogue.

The experience of other countries is that, in theory, the Upper House is the home of intellectuals and moralists at some slight distance from the hurly-burly of the hustings - but in reality, elsewhere the experience has been that the Upper House is invariably a training ground for the National Assembly. The USA differs here (one tends to go upwards in seniority in the USA, when one goes from the House of Reps to the Senate), but elsewhere the Upper House is a training school - I hope that will not be so in South Africa.

I believe that we must have a vital and lively local and regional government system, not filled with hacks and non-descripts. This is the engine of democracy - lively local and regional government, from where the members of the National Assembly and the Senate emerge.

But of course the Upper House should be more relaxed than the Lower House, it should look at those areas of governance that the National Assembly will not have the time to look at thoroughly.

Fourth point of apparent common ground: That South Africa should have three tiers of government: central, regional and local.

For, while we agree to three tiers of government, the DP and the NP would see these tiers constitutionally prescribed with constitutional powers.

The ANC's position is quite different: we want three tiers of government, yes, but they must be performing functions and work appropriate to each tier. National parliament performs national tasks, regional executives perform regional tasks and local authorities perform local tasks.

But we would not wish for these tasks to be constitutionally prescribed, as in a federal model. Ours is not a federal model - the NP's, and the DP's, of course are.

My study of federalism tells me clearly that successful federations came about when autonomous or nearly autonomous independent states or regions came together, using a new federal constitution as the glue to hold the new state, super-state you might say, together.

The British Royal Commission on Constitutions of 1975 said clearly that the essence of federalism was not to dismember a previously unitary state.

Historic parallels are very important here.

In what is now the United States, 13 independent states came together to form the Union. In Germany when, the federal system was set up in 1919 it was in Saxony, Baderwurtonberg, Wesphalia, etc, the old units of before the Bismarck Reich, that were the building blocks of the federation. East Germany, a unitary state, has just been brought in to the German Federation - but it was brought in on the basis of the pre-existing lander or states.

Our point is, a federal model works this way - by gluing together previously independent states. To try to impose a federal model on a previously unitary state, like in South Africa, as envisaged by the NP and the DP, is a recipe for disaster. Every time this has been tried, it has been a disaster.

There is no historic base for the Northern Cape to be a separate state - none whatsoever. Nor for the Northern Transvaal, or Eastern Transvaal, or for the DP's 10-14 states, or the NP's 9. There is an historic base for the provinces, but we are rejecting that.

A second argument against a federal model for South Africa begins with the premise that federations don't work where there are vast economic and population disparities. Whatever case the DP and the NP are making, their PWV state will hold possibly 40% of the gross geographic product, and maybe 40% of the population, of South Africa. You cannot have a successful federation where nearly half of the nation's wealth is locked into one region.

We have no historic base for a regional tax collection in 10 or 14 regions, and there is no moral base for locking the wealth of some regions, and the poverty of others, into arbitrarily defined regions, as the NP model would do.

I regret to say that I think that looking at the proposals for federalism for South Africa that have thus far been put, that they are not so much concerned with the idea that less government is good government, as they are associated with a racial preference. Somewhere there seems to me to be the idea floating at the back of this federal concept that, if there are many, small, regional governments, superior social forces will be able to control these governments. This is both misconceived and mischievous.

Also it seems wrong to believe that a federal model will mean more participation in government, more representative government.

Talk to Americans, or Germans. They say their federal government is so impersonal. It is bureaucratic, with layers and layers of governmental structures; and lawyers and more lawyers. Lawyers triumph in federalism. I am committed to ensuring that the role of lawyers is restricted to giving advice - in a federal system at all levels you need lawyers. There is always, inevitably, with a federation vast amounts of litigation on particular development projects, where each region believes it has rights to development money and that it is being incorrectly parcelled out by the central fiscus.

In my view a unitary government is as liable to provide for meaningful participation and meaningful self-government, as is a federal model.

But the fundamental difference is that with a unitary system you don't lock power permanently into artificially created units, thereby depriving the central government of what the French call the powers of dirigism, the powers to allocate resources and the powers to establish central standards for economic reconstruction. A cynical view is that those who propose a federal model don't want the tasks of reconstruction to be carried out, as reconstruction may see a reduction in the amount of state spending on privileged areas, and an increase in underprivileged areas.

Fifth point of apparent common ground: that South Africa's constitution should be rigid in some respects, and that clauses of this constitution could only be amended by weighted majorities.

The constitution should be rigid. Because it is the social contract of our people. Our constitution must not become like Eastern European constitutions - a well-phrased poster at which you doff your cap every morning, but which has no basis in the reality of your life.

It must be rigid because it is a contract between the citizens and the parties that make up their representation.

Another point here: Hannah Arendt says that it's not what is included in a constitution that matters so much, but the way it was adopted. That is right, and it is why a constitutional assembly is so important.

How rigid? The Namibian Constitution has human rights provisions that are 100% entrenched. I understand this is already causing problems.

With the greatest respect to those who put the Namibian Constitution together, 100% rigidity is the recipe for disaster. It is untenable.

One has to recognise that one cannot forsee contingencies. The constitutional crises that have beset Australia and the United States have turned around such matters as nuclear matters and the control of large-scale pollution. When the Australian and American constitutions were adopted, pollution was cow droppings - well, it isn't any more! This could not be anticipated.

We believe that most legislation that can be passed by simple majority, but that amending the constitution for example, requires a 2/3 majority. We can debate whether a referendum of the public is also necessary - but we cannot debate that the constitution can be amended by 51% majorities of both houses.

A Sixth point of common ground is that South Africa should now have a justiciable Bill of Rights defending at least fundamental individual rights.

The African National Congress has in November 1990 put on public record a draft Bill of Rights. We requested comment and submissions, and received about 300. Using these comments, we are now fine-tuning our Bill of Rights.

Neither the NP nor the DP have as yet produced a draft bill.

The NP has, of course, over time consciously waged war on rights. In 1986 the State President rejected the notion of a Bill of Rights. This was the culmination of a trend begun by Paul Kruger, who said that, to give the courts a testing power on legislation would be "the work of the devil".

We're pleased to see that the NP has changed - but how much?

In the absence of an NP draft bill of rights, one can only construe their position from NP spokespersons' statements, and from the Law Commission's Report. Sometimes one feels that their approach to a Bill of Rights is that it should be an instrument to restrict majoritarianism, a method of maintaining the status quo. If it is to be that, it has an inner cancer that will destroy it.

The bill should rather be seen as an affirmative measure to protect and enhance rights in a country that has never recognised rights. It must copper-fasten political rights, and affirm cultural, language and religious rights. We believe that one must protect rights to own language schools, rights to protect civil society and such.

The NP has also suggested the Bill of Rights as a vehicle to constitutionally protect the market economy. This raises the spectre of putting ideology into the Bill of Rights. Ideology is part of the dispute process in parliament - not a Bill of Rights issue. The Bill of Rights must be neutral with regards economic system - the Bill of Rights should recognise that these should be private, state and family property - but it cannot go beyond that.

There will obviously be difficulties constitutionalising second and third generation rights.

It is a treason to first generation rights to say that only first generation rights merit protection. Other countries' experience is that economic and social rights are indivisible from political and civil rights.

For the purposes of enforcement of second and third generation rights, there'll be different techniques.

But they are rights and must be seen to be so. Other countries' experience shows how judiciaries draw on social and economic rights to buttress first generation rights.

In India courts held that people couldn't be evicted from living on the pavement if there was a likelihood of their children dying of exposure - they found that you can't evict people unless alternative housing was provided.

In the USA they found that the right to a fair trial meant the right to a speedy trial, and an onus was put on the state to build courts, and employ judges.

One cannot just separate off, first from second and third generation rights.

It seems common ground that South Africa should have an independent judiciary.

Yes, independent for the first time. That means not governmental appointees - that leads to cronyism, and we've seen enough of that.

Today, appointments are made by some masonic system - a judge evolves because the judge president of your province recommends his (mostly) or her (very seldom) name. This is illegitimate, unacceptable.

We don't want ANC hacks on the judiciary - we've had enough of hacks, NP and United Party ones, in the past.

For judges in the future, I understand that an open enquiry system like the senate of the United States is unacceptible - names will not come forward.

We would like to see a majority of lay people involved in the investigation and proposal stage. These committees could recommend three people for each available post, and the senate judicial committee would then choose one, who the State President would appoint as a formality. This would get away from today's system of lawyers judging lawyers. For the constitutional court, I prefer the German, or Italian or Spanish system, where these judges are elected by the Upper House (preferably), on a proportional basis of party strength, to reflect the philosophical assumptions of society at large. So we will have whites, blacks - even, for the first time, women.

We must have such open systems - electoral systems. We must get away from closed systems and cronyism.

An eighth point of apparent common ground is that South Africa should have a constitutional court to interpret constitutional issues.

It was the ANC that first proposed the constitutional court, which we see as the institution that is the supreme interpreter of the constitution.

We draw on a rich contemporary tradition here: constitutional courts have been established in Portugal in 1974, in Spain in 1975, in Austria in 1920, in Turkey three years ago, and, most recently, in the Soviet Union, Czechoslovakia, Hungary and Poland.

It forms another reasons why we advocate a unitary as opposed to a federal state. To plunge the new constitutional government into jurisdictional disputes as to whether in fact the competence is properly to be exercised by the regional power, or the central government, is again a recipe for constitutional paralysis.

The final point of agreement is around the issue of the civil service; all three parties appear to have agreed that South Africa should have an impartial civil service that more accurately reflects our population mix than it does at present; that an independent body, a public service commission or the Upper House, should supervise senior civil service appointments; and that we need an ombud.

Our civil service must show three characteristics: impartiality, competence and representativity. Right now the civil service represents a political party - it has no basis of impartiality whatsoever. Eamon D'Oliviera, the famous President of Ireland, said that when he wanted to find out what the Irish people thought, he looked into his heart. Well, however capacious civil service hearts may be in South Africa, they can't and don't look after the interests of the majority of our people. I, for example, was told by a civil servant in all seriousness that African culture only demands the outlines of a shelter - you don't have to provide proper housing for Africans.

Then competence. I came from exile - I am used to much higher standards then one sees here, now. Tardiness in response, transactions that imply that an act of patronage is taking place, low standards in correspondence - no, we need high standards in our future civil service.

We must break the monopoly on effective government that the present civil service holds - effective government must be elected government, not unelected government. We must have a public service commission that makes senior appointments, and possibly the Upper House making the most senior appointments. We must have representativity.

And an ombud. This is going to be a great new institution in South Africa.

Right now South Africa is full of corruption. It is the Ombud, not the courts, that will be the investigator of corruption. Courts, commissions of enquiry, are blunderbusses - we need instant investigation of maladministration, and the Ombud is the organ for that, for having a broad scrutiny over the civil service.

In Ireland, Britain, Sweden and New Zealand the ombud is a very vibrant institution, the real protector of citizen's rights.

So the civil service must be impartial, must be representative, must be competent and must be under the control of an Ombud.

The first obvious point of difference between the constitutional models of the NP, the ANC and the DP is the concept of the President, or the body called the Presidency. The NP proposes a three-person presidency; the ANC is unsure whether the President should be directly elected by voters or appointed through the channels of parliament; the DP President is directly elected by voters, but their model is unclear as to whether parliament controls the president, or whether he has independent powers.

I don't think the NP proposals can be taken seriously. They are just a recipe or immobilism and ungovernability.

We need a symbol of national unity in South Africa - and the President could be such a symbol. The NP proposal reserves the elements of the focus of legitimacy and loyalty from the Presidency.

The second criticism of the NP proposal is that it gives constitutional legitimacy to what is a practice in Switzerland - you cannot have consensus by legislative decree. Our country, unlike Switzerland, does not have broad agreement on the fundamentals, the economy, lifestyle and so on.

And the demand for consensus between previously opposing parties. You can't take decisions on national reconstruction on the basis of consensus - that is the tail end of consociationalism. Likewise, the request that the cabinet acts by consensus is really to give a veto to unrepresentative organisations. And, to an extent, minority parties in South Africa will probably be ethno-chauvinist - we should not supply ethno-chauvinist organisations, however discrete, with constitutional protection.

We must not forget what De Klerk has said over and over again - that he did not become leader of the NP to surrender power, but rather to share it. They do not wish to see the nature of the state change - the civil service, the bureaucracy, the army and the police. They have not yet seen past the concept of an NP state with an element of democratic legitimacy. Only the National Assembly, for the NP, is a democratic body - everything else is structured to frustrate democracy, and to preserve ethno-chauvinistic privilege.

The NP criticises the ANC constitutional proposals on the ground that they have central government as a too powerful body. If you were to suggest any further checks on the power of central government, where would you put them?

It ill behoves the NP to talk of the majority wanting to "dominate minorities" - a stronger word than domination can be used to describe what Mr De Klerk and his government have done, and even stronger words are needed to describe the awfulness, the suffering, the degradation that has been apartheid's crime.

We in the ANC believe in strong limitations on governmental power. The separation of powers. Judges interpreting laws. A constitutional court. A Bill of Rights. A Human Rights Commission. A written constitution that establishes constitutionalism. High-level state appointments being made openly for the first time. Viable, strong regional and local government. Developing and encouraging the organs of civil society. Countervailing sources of power - a strong trade union movement, strong youth, sporting and cultural organisations. An ombud.

These are massive restrictions on government, the sort the NP would never contemplate as limitations on their power. Here, it is the oppressed that are proposing them. Surely that is our hope?

This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. Return to the Nelson Mandela Centre of Memory site.