|
|
 |
 |
| Sunday, 1 August 2004 |
 |
|
 |
Features |  |
| News Business Features Editorial
|
South African experience in constitution making South Africa rose from a bitter apartheid legacy to be a role model to modern democracies. The pillar of the country's remarkably ordered transition was its constitution drafted in the course of almost seven years of painstaking negotiations. The making of the South African constitution was a truly national endeavour which encouraged the participation of the widest variety of people, which culminated in a secular, non-sexist constitution in 1996. As Cyril Ramaphosa, the African National Congress member who chaired the Constitutional Assembly put it, the final product was drafted by 40 million people that seems an apt description of the process. Prof. Nick Haysom, the constitutional advisor to President Nelson Mandela spoke to Ranga Jayasuriya of the Sunday Observer on the South African experience; on its challenges and achievements and the rationale which turned one time adversaries into partners and, of course, lessons which Sri Lanka can derive from South Africa. Prof Haysom played a vital role in the negotiations in South Africa and at present is an advisor to Sudanese peace negotiations between the Islamic regime in Khartoum and separatist rebels in the South. The fortunate aspect of the South African experience was that there was a leader on either side of the racial divide who commanded the support of his community. Not withstanding the fact that both took responsibility for the transition to be followed through, they did make sure that the different political opinions of both black and white communities were included. Because they realised that if any group is left behind, it would turn destructive for the process sooner or later. South Africans have seen how it was destructive to their neighbours in Africa. In South Africa, the process began in 1989 and it took five years for an interim constitution to be drafted. The interim constitution led to the first non-racial elections and the democratically elected Parliament transformed itself to a Constituent Assembly to draft the final constitution on the lines agreed on in the interim constitution. The Government encouraged the participation of people. They were provided with information and opportunities to make representations concerning constitution making. "The idea was that if you introduce new constitutional values to South Africans to live together in harmony, you got to promote these values of democracy, equality and tolerance. So you got to take ordinary people with you," said Prof. Haysom. In the mid 1990s, the South African process became a full-scale demonstration of participatory constitution making. Until that time, the public had no direct role in constitution making. The Constituent Assembly reached out to people to educate them on their new constitution. A massive media and advertising campaign was launched using newspapers, radio and television, billboards, and the sides of buses, an assembly newspaper with a circulation of 160,000 cartoons, a website and public meetings. These efforts reached an estimated 73 per cent of the population. ANC identity Perhaps, the most striking example of public participation was two million submissions which the Constituent Assembly received from individuals, civic society groups and other interests. The identity of the ANC was also a driving force. It had a leadership, Mandela quite a distinctive politician and a conspicuously multi-cultural character. The ANC was able to address anxieties among the white community while not abandoning the aspirations of the black community. "In South Africa there was an understanding that people share a common destiny and that they have to forge together to prosper". In South Africa there was common patriotism that white or black, you are South African. As for Sri Lanka, what is equally important is a joint initiative in the South on the peace front. Long history in the peace efforts had been one group sabotaging the peace process by the other. There should be a mechanism taking the peace project out of the party political arena, making it a more nationally owned project outside political infighting. Minority rights Whatever the kind of process followed, there should be guarantees that minority rights will not be abandoned. Minorities particularly distrust, when the line between the majority and minority is not political, but an ethnic one. In Natal, South Africans experienced the same phenomena when a party which commanded the support of Zulu people resisted, fearing marginalisation. Concerns of the Zulu Inkata Party were addressed by engaging a two- fold process. The first process ensured every group with equal powers, whatever the racial or political identities may be. So everybody had a share on the outcome. That process guaranteed what the outcome would be in the form of basic constitutional principles and it led to the interim constitution under which the first non-racial elections were held. The second phase was the process by that democratically elected Parliament; a Constituent Assembly through which conventional democratic instrumentalities developed, drafted and adopted the final democratic constitution. The first phase guaranteed the outcome of the minorities in the constitution. The second phase drafted the final constitution on the line of the interim constitution with the participation of the public. When encouraging a wider participation, the process is bound to face many a disagreement. To address this dilemma, the negotiators adopted a technique of "sufficient consensus", meaning one party alone could not block the process. Negotiations were held among fora of 24 parties. Also the two major parties had informal negotiations. Requisite to any form of successful conflict resolution is the realisation by the parties that there is no military solution to the problem. Once they realise it, they recognise that negotiations are the basis for a solution, because it saves capital, human resources and infrastructure. And the parties have to make some concessions to find a common consensus. "We have to find a formula we can live with, even though this is not what we first wanted". In Sri Lanka, there is a gap between the two parties, which has to be narrowed and bridged. That gap is not so wide. Indeed there is a general understanding both in the South and the North on devolution of power. Of course, Sri Lanka has to find a solution suitable to the country, but it does not need to re-invent the wheel. This is not the only country which has a bi-polar conflict based on geographical divisions. There is an obligation on the part of the political leadership to look into all the mistakes and successes in the political history of the twentieth century and avoid repeating their mistakes and learn from their successes. " One of the problems in finding solutions to the identity-based conflicts or constitutional crisis, is that we are prisoners of our imagination, we have only a few options that we can imagine as possible because we have not been exposed to others". Every country has to find a particular kind of detail to its solutions which are based on different culture or ethnicity, but the logic of the democratic system has an universal application. South Africa looked into, critiqued and was influenced by constitutions of established democracies. "Take Canada, we had a close look at their Bill of Rights, but we thought its federal structure was inappropriate, it was too fragile. Germany on the other hand had some interesting features on its federal system, we thought that was applicable. When looking at our Bill of Rights we looked to Indian jurisprudence, which had some interesting Supreme Court rulings". Economic disparity However, what is equally important is that constitutional form does not eradicate a country's problems. The Constitutional form gives the machinery to deal with these problems, but it does not deal with them itself. South Africa is not without problems, it has to bridge the wide economic disparity, provide employment to a large number of unemployed, accelerate economic growth and address the catastrophic consequences of AIDS. Apart from inclusiveness, equally important in this experience was that the two parties strived to build trust between each other. Eventually this leads to some understanding that "your enemy is your partner". "His problems are your problems, him facing problems in his constituency will affect the process, so you got to help him in dealing with his constituency and he must help you to deal with your constituency". The ANC did not make inflammatory comments which would frighten the whites, it did not try to discredit De Clerk in front of his supporters, it recognised that he also had a constituency, it wanted De Clerk to deliver their share to the whites at the negotiation table. And such a trust coupled with mutual dependency of the parties dictated compromise and concessions. Addressing cultural diversity is a challenge modern democracies are now facing. South Africa won the challenge - and Sri Lanka has to do the same- by exploring a new concept of citizenship, which is not based on ethnic or religious lines, but a citizenship which recognises a common destiny, common values and democracy. |
|
News | Business | Features
| Editorial | Security Produced by Lake House |
