The South Africa experience
National unity government allowed participation of small parties
April 22, 1999
The National Plan for Reconstruction and Development (NPRD) was born out of the desire of the African National Congress (ANC) to turn to its advantage the imposition of the national unity government, according to the South African jurist, Professor Albert Sachs.
Prof Sachs, a member of South Africa's Constitutional Court, in sharing his experience of the constitution reform process, explained that the imposition of the national unity government at a time when the ideal for which its activists had sacrificed and endured much hardship was about to be realised was resented by the ANC.
But he said that the intense debate on the issue brought about the realisation that it could be turned to its advantage as the benefit of having those persons who had established the institutions of oppression, such as the security forces, involved in their transformation to institutions to protect the rights of all the South African people, was pointed out. In addition he said that the development of the NPRD had helped to revitalise the ANC as it sought the views of its membership on a plan on which agreement was a criterion for participation in the national unity government.
Responding to questions about the functioning of the national unity government, Prof Sachs said that while the parties nominated the ministers it was the President who determined the allocation of the portfolios. Also he said that the decision-making in the Cabinet required the collegiate approach in line with the broad mandate given to it and in conformity with the Constitution as well as paying due regard to minority opinions.
Commenting on questions about the withdrawal from the national unity government by the National Party, Prof Sachs said that it was a reaction to the perception of its rank and file membership that it had been co-opted by the ANC and it was not being as active an opposition as the much smaller parties.
Commenting too on the enforcement of the fundamental rights in the constitution, Prof Sachs said that besides the Constitutional Court there were other constitutional bodies such as the Commissions for Human Rights and Gender Equality and the Office of the Public Protector which is the equivalent of the Office of the Ombudsman in the Guyana Constitution.
Also, he said that in addition to Legal Aid there were public interest divisions in a number of legal firms as well as a number of non-governmental organisations which brought test cases to the courts which were argued by skilful, experienced and committed human rights advocates.
He said that there was a Constitution Information Programme which made available to the public on a regular basis the decisions of the Constitution Court in easily understandable texts.
Answering questions on the acceptance of the universality of the fundamental rights, Prof Sachs explained that some leaders in Africa and Asia had argued that the fundamental rights based on the individual conflicted with their cultural patterns which focused on the family, the community and the society.
But he said that with respect to Africa, these leaders who used these arguments were the very ones who were imprisoning their political opponents. Also, he said that in the case of South Africa, the white minority contended that the black South Africans were incapable of comprehending the universality of fundamental rights.
However, he said, the ANC regarded the universality of the fundamental rights as articles of faith essential to its belief in the equality of all South Africans regardless of their ethnic origin.
He said that central to its commitment to fundamental human rights was the right of the individual to be different and that this was perceived as an acknowledgment of the richness of the diversity of South African society.
Prof Sachs said that whatever the colour of their skin, all South Africans were equal, with that equality in no way lessened as a result of their being a Zulu or an Afrikaner.
Questioned about the behaviour of the police and old style politicians who functioned under the apartheid system, Prof Sachs said that the old-style politicians were now in opposition and had developed a love affair with the Bill of Rights in the Constitution, which was welcomed by the South African government.
For the police, he explained that it was a more difficult proposition especially since crime was on the rise and they were being forced to function without the protection they once enjoyed, without a new intelligence system and shorn of their ability to use torture as an operational tool. He noted that the new recruits were expected to be versed in the tenets of acceptable police behaviour, though he feared that once out of training school, they would be attracted to the old discredited methods. But Prof Sachs said that in the police force, there were dedicated policemen who put their lives on the line and performed their duties in a highly professional manner.
He said that the newly appointed ministers, though they had developed considerable experience in governance during the period of the struggle and functioned in accordance with a Code of Conduct the ANC had developed, found it useful to have some of the former government ministers in the Cabinet. He said that their presence reassured the international community that everyone was on board.
Asked about the South African preference for the system of proportional representation, Prof Sachs said that it offered the best guarantee that the vote of every individual would count.
However, he said that it carried the disadvantage that it militated against internal democracy as it concentrated power in the hands of the party leader in constituting the list. Another disadvantage, he said, was that there was no person identified with a particular constituency to whom the citizen could turn for advice or assistance.
However, he noted the advantage of the system in affording parliamentary representation to the smaller parties, which for South Africa was crucial since it wanted all to be involved in the process of development of the new South Africa.
Prof Sachs explained that for the ANC the inclusion of the smaller parties was an indication of its desire to be associated with a concept of democracy which was inseparable from peace, progress and prosperity.
On the question of gender affirmation in the South African Constitution, Prof Sachs said that the Constitution's provision that South Africa was a non-sexist state did not alleviate the problems of domestic violence and the dominance of the patriarchal concept. However, he noted that it provided the environment in which these problems could be successfully tackled.
Also, he said that the commitment to the equality of all South Africans banned discrimination not only on account of gender but also on the ground of sexual orientation thus facilitating acceptance of same-sex love relationships.
Prof Sachs noted that it was not difficult for the ANC membership to accept this notion since it was witness to the bravery and courage of some of its members with this sexual orientation, among whom was a former driver of Nelson Mandela.
He explained that it was unthinkable, given the bravery and courage the driver had demonstrated during the struggle that he should be discriminated against because of his sexual orientation. Commenting on the course of the negotiations of the Constitution reform process, Prof Sachs said that while there were frequent deadlocks there were just a few breakdowns. But he said that it was important that in the process that there should always be some point of contact between the parties, whatever the state of the negotiations.
And he explained that the resolution of the tensions between the provincial governments and the national government was based on the recognition of the limits of both organs in areas such as education and health.
He said that as a general rule, the provincial governments were concerned with the implementation of programmes in line with the policy set by the national government. And where legislation conflicted, the courts were tasked with resolving the issue if other means proved unsuccessful.
Prof Sachs also noted the role of the courts in determining the constitutionality of administrative acts to right discriminatory practices so that the Constitution was seen not to be a Constitution only for the disadvantaged in the society.