Apartheid's Legal End: How 26 Parties Built South Africa's Bridge Constitution

Twenty-six political groups sat down at Kempton Park, near Johannesburg, in November 1993 and produced a document that would end apartheid’s legal order. The agreement was described as satisfactory, allowing the old and new systems to govern together while establishing national control over the military. It was explicitly temporary, designed to last only six months before a democratically elected Constitutional Assembly would draft a final Constitution.

The path to that November meeting had begun more than two years earlier. On 13 November 1991, Nelson Mandela announced that the first constitutional talks would take place on 29 and 30 November at the World Trade Centre in Kempton Park, east of Johannesburg. The Convention for a Democratic South Africa, known as CODESA I, held its first plenary meeting on 20 December 1991 at the same venue. Chief Justice Corbett and Justices Ismail Mohamed and Petrus Schabort chaired the historic gathering, which brought together nineteen political parties and organisations: the National Party, African National Congress, South African Communist Party, Inkatha Freedom Party, Labour Party, the Inyandza National Movement, the Transvaal and Natal Indian Congress, the Venda government, the Bophuthatswana government, the Transkei government, United People’s Front, Solidarity Party, Democratic Party, National People’s Party, Ciskei government, Dikwankwetla Party, Intando Yesizwe Party and Ximoko Progressive Party.

On 21 December 1991, all parties except the IFP and the Bophuthatswana Government signed a Declaration of Intent. The declaration committed participants to create a united South Africa sharing a common citizenship, to heal the divisions of the past, to improve the quality of life for all people, and to establish an environment conducive to peaceful constitutional change by eliminating violence and promoting free political participation, discussion and debate. A Management Committee chaired by Pravin Gordhan was created to supervise the process, with a Daily Management Committee that included Zach De Beer, Peter Hendrickse, Frank Mdladlose, Selby Rapinga, Roelf Meyer, Zamindlela Titus and Jacob Zuma. Mac Maharaj and Fanie van der Merwe headed the Secretariat, later replaced by Niel Barnard. Murphy Morobe led the CODESA Administration, assisted by Dr Theuns Eloff and civil servants from constitutional development and the Consultative Business Movement.

The major outcome of CODESA I was the creation of five working groups tasked with different aspects of the constitutional framework. Working Group 1 addressed the environment for free political participation and the international community’s role, divided into three sub-groups covering reconciliation, political intimidation and security, and free political participation itself. Working Group 2 focused on constitutional principles and the constitution-making body. Working Group 3 concentrated on interim government arrangements. Working Group 4, chaired by Stella Sigcau, examined the future of the homelands, with four sub-groups led by Errol Moorcroft, C.D. Marivate, Charles Simkins and Devagie Govender addressing citizen views, citizenship, administrative implications and constitutional implications respectively. Working Group 5 managed timeframes and implementation of CODESA I decisions.

Beginning on 20 January 1992, the working groups met twice weekly, each comprising nearly eighty people negotiating compromises on various issues. Only Working Group 3 produced a compromise that would be used in later negotiating processes, and it alone employed a technical committee of experts including Fanie van der Merwe, Arthur Chaskalson, Halton Cheadle, Andries Cilliers and Francois Junod. In April 1992, a Gender Advisory Committee was established to advise on gender issues, with members including Sandra Botha, Gill Noero, Janine Quince, Zo Kota-Mthimunye, Fiona Wallace and Mavivi Manzini. An all-white referendum held in March 1992 gave President De Klerk the mandate to continue negotiations.

CODESA II began in May 1992 but collapsed following the Boipatong massacre in June 1992, which prompted the ANC to withdraw from the negotiation table. Then came the Bisho massacre in September 1992, in which twenty-eight ANC protesters were killed by the Ciskei Defence Force. The killings created urgency for a political settlement. On 26 September 1992, the government and the ANC agreed on a Record of Understanding. The multiparty Negotiating Forum commenced in April 1993, and an Interim Constitution was initiated on 18 November 1993. A Transitional Executive Council was formed to run the country until democratic elections could be held.

The Interim Constitution was described as an “historic bridge” between the past and the future, intended to facilitate continued governance while an elected Constitutional Assembly drafted a final Constitution. The negotiating parties believed it improper to make the final document without public support through the electoral system, since these groups were not formally elected but merely reflected the political realities of that time. The agreement stipulated that the final Constitution would comply with thirty-four constitutional principles contained in a schedule to the Interim Constitution.

The 1993 Interim Constitution created the Constitutional Court. After approval at Kempton Park, it was endorsed by the last apartheid Parliament and became the Constitution of the Republic of South Africa, Act 200 of 1993. It came into effect on 27 April 1994 to administer South Africa’s first democratic elections, enabling South Africans to participate in their first one-person-one-vote non-racial election that year.

The Interim Constitution addressed civil and political rights through a Bill of Rights guaranteeing protections aligned with international human rights conventions, stating that “everyone shall enjoy all universally accepted fundamental rights, freedoms and liberties”. Beyond traditional rights, it included innovative protections: the right of access to information; the right to administrative justice; a qualified right to the free pursuit of economic activity; the right to an environment not harmful to health or well-being; the right of children to security, basic nutrition, basic health and social services; language and cultural rights; and educational rights. Labour rights and property rights were also protected. The Constitutional Court, the Human Rights Commission, and the Commission on Gender Equality were all established under its provisions.

The drafting process involved numerous role players, including Hassin Ebrahim, Gora Ebrahim, Ela Gandhi, Douglas Gibson, Frene Noshir Ginwala, John Gomomo, Pravin Gordhan, Archibald Jacob Gumede, William Hofmeyr, Harrington Holomisa, Ronnie Kasrils, Mohamed Ahmed Kathrada, Baleka Kgositsile, Kete Ellen Kuzwayo, Sandy Liebenberg, Sylvia Brigett Mabandla, Mac Maharaj, Thabo Mbeki, Gill Marcus, Roelf Meyer, Winnie Madikizela Mandela, Johannes Modise, Thandi Modise, Peter Ramoshoang Mokaba, Ruth Mompati, Dullah Omar, Naledi Pandor, Ebrahim Patel, Mathews Phosa, Cyril Ramaphosa as head of the ANC negotiation team, Sam Shilowa, Albertina Sisulu, Zola Skweyiya, Joe Slovo, Dene Smuts, Ben Turok and Fanie van der Merwe. The Interim Constitution represented a compromise between the National Party, which had ruled South Africa since 1948, and the African National Congress, which had been banned from 1960 to 1990.

Whether the thirty-four constitutional principles that bound the final Constitution’s drafters adequately captured the aspirations of those who had lived under apartheid remained a question the Constitutional Assembly would have to answer when it convened after the April 1994 elections. Further information about the Interim Constitution can be found at https://sahistory.org.za/article/interim-south-african-constitution-1993.