The Constitutional Transition (1990-1996)
Introduction
The constitutional transition of South Africa (1990-1996) represents one of the most remarkable legal and political transformations in modern history. The transition from apartheid to constitutional democracy was negotiated, not imposed, and resulted in a legal framework that has become a model for transitional justice and constitutional design worldwide.
The Negotiation Process
The transition began with President F.W. de Klerk’s speech on 2 February 1990, unbanning the ANC and other liberation movements and releasing Nelson Mandela. The Convention for a Democratic South Africa (CODESA) began in 1991 but collapsed in 1992. After the Boipatong massacre and the Bisho massacre, the Multi-Party Negotiating Process (MPNP) resumed in 1993 and reached agreement on the Interim Constitution.
The Interim Constitution 1993
The Interim Constitution of the Republic of South Africa Act 200 of 1993 was the product of the negotiated settlement. It established a transitional Government of National Unity, a Constitutional Court, and a Bill of Rights. Crucially, it contained 34 Constitutional Principles with which the final Constitution had to comply. The Constitutional Court was given the power to certify that the final Constitution complied with these principles.
The Constitutional Assembly
The Constitutional Assembly (the National Assembly and the Senate sitting jointly) was responsible for drafting the final Constitution. The process involved extensive public participation, including public hearings, submissions from civil society, and a mass public education campaign. The final text was adopted by the Constitutional Assembly on 8 May 1996.
The Certification Process
The Constitutional Court reviewed the draft Constitution against the 34 Constitutional Principles. In its First Certification judgment (Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the RSA 1996 (4) SA 744 (CC)), the Court refused to certify the text, finding that some provisions did not comply with the Principles. The Constitutional Assembly amended the text, and the Court certified it in the Second Certification judgment on 4 December 1996.
The Truth and Reconciliation Commission
The TRC, established under the Promotion of National Unity and Reconciliation Act 34 of 1995, was a central component of the transition. The TRC granted amnesty for politically motivated crimes committed during the apartheid era in exchange for full disclosure. The TRC’s work has been praised as a model of restorative transitional justice, but also criticised for failing to secure accountability for many human rights violations.
Conclusion
The constitutional transition (1990-1996) established the legal foundation for the new South Africa. The negotiated settlement, the Interim Constitution, the final Constitution, and the TRC together represent a comprehensive approach to transitional justice. The 1996 Constitution, as the product of this process, continues to guide South Africa’s democratic development.