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[1993] ZAConAsmRes 16
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Eighth Report of the Technical Committee on Constitutional Issues to the Negotiating Council [1993] ZAConAsmRes 16 (26 July 1993)
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EMBARGOED UNTIL TABLING IN THE NEGOTIATING COUNCIL EIGHTH REPORT OF THE TECHNICAL COMMITTEE
1.1 In terms of the Resolution on Steps to be Taken for the Purposes of Establishing a New Constitutional Order, we were instructed by the Negotiating Council to draft a Constitution for the transition which shall make provision for: 1.1.1 the election according to a system of proportional representation of a
constitution making body, legislature and national government
for the
transitional phase which will include a national and regional component. With
regard to constitution making, this Constitution
shall provide for deadlock
breaking and special majorities by which decisions will be taken; 1.1.2 the election of regional legislatures and the establishment of regional governments in the transition; 1.1.3 the powers, functions and structures of regions for the transitional period; 1.1.4 fundamental human rights on a justiciable basis during the transitional period; 1.1.5 a constitutional court/tribunal to ensure the justiciability of the constitutional principles, of the fundamental rights and of the Constitution itself. 1.2 This Resolution requires us to proceed along the lines of the "two stage process", and to formulate the provisions of a constitution for a transitional period during which an elected body will function both as a legislature and a constitution making body charged with the responsibility of drafting a new constitution in accordance with Constitutional Principles agreed upon by the MPNP. Some of the submissions to us continue to urge us to follow a "one stage process" according to which a rigid constitution will be adopted by the MPNP. In the light of our instruction we cannot proceed along these lines: we are required to follow the "two stage process" and have done so. We have, however, paid particular regard to the status of SPRs and have made provisions in our draft to ensure that they will have both autonomy and original powers - factors which are stressed as being of importance in some submissions dealing with the "one stage process". 1.3 In our Fifth Report we drew attention to a number of issues relevant to
the drafting of a constitution for the transitional period
on which decisions
still have to be taken by the Negotiating Council. Participants were asked by
the Negotiating Council to submit
their proposals concerning such matters to us
by 12 July. We have received responses to our Fifth Report from
various
The technical interpretation of the Draft Outline will be further elaborated to the Negotiating Council when we present this Report.
We have received a recent submission from the government of Bophuthatswana
which proposes "associate membership of the Republic of
South Africa" for
Bophuthatswana. What it has in mind is a retention of its present identity,
representation in the South African
parliament on a non-voting basis save in
regard to issues directly affecting the constitution, and submission to South
African laws
only if they are specifically adopted by its own Parliament. We
cannot, however, explore the possibilities of this proposal unless
we are
assured by the Negotiating Council that instead of reincorporation,
Bophuthatswana will be accorded the status of an “associate
member of the
RSA. " The question of the reincorporation of the TBVC states is relevant to the definition of the national territory, the boundaries of the SPRs, and the holding of elections. Whether reincorporation should take place, and if it does, when and on what terms this should be done has not yet been resolved. Apart from the issue of boundaries and elections, there are a number of technical issues that will have to be addressed if there is to be reincorporation. These include the legal forms according to which it will be effected, arrangements to be made in respect of existing contractual liabilities, and the creation of a single legal order in the SPRs into which the TBVC states will fall. If there is to be reincorporation it would be easier from a practical point of view to address these issues before the elections are held. This would not only facilitate the conducting of the elections, but would also allow more time for the process of rationalisation and integration of the existing administrations, and make it easier to establish SPR government and administration during the transitional period. For the purpose of drafting a constitution for the transitional period it is essential to reach finality on the question whether, and if so, when and on what terms the TBVC states will be reincorporated. Similarly, we are not in a position to assess the constitutional implications of those submissions in which the retention of sovereign status for SPRs is proposed. Such "inalienable and untransferable sovereignty" which according to these submissions, gives preference to the provisions of SPR constitutions over and above those of the National Constitution, is essentially confederalist in nature and does not correspond with the approach consistently adopted in the Negotiating Council and in our previous Reports. Again, as stated in paragraph 2, we urge the Negotiating Council to take a decision on the matter of confederalism.
The Constitution for the transitional period will have to make provision for the holding of the elections and the governing of the country after the elections have been held. We have assumed that in the period between the enactment of the constitution, and the holding of elections, existing administrations either on their own or in consultation with the TEC will remain responsible in terms of existing constitutional legislation for the governing of the country. If this is so, the constitution could stipulate that the provisions relevant to the holding of elections and the making of preparations for the establishment of SPR government and administration in the newly created SPRS, shall come into force at an appropriate time before the elections are held, and that the other provisions shall come into force immediately after the elections have been held. Appropriate transitional provisions will be necessary to ensure that there is constitutional continuity and that there is at no stage a political vacuum.
7.1 The elected body functioning as legislature This is dealt with in Chapter 4 of the Draft Outline. 7.1.1 Composition of the legislature In order to establish the equality of SPR dispensations during the transitional period, the Senate will be composed of an equal number of representatives for each SPR. With SPR representation on an equal footing and SPR representatives in the National Assembly, the Senate does not need to be a large body, and provision has been made for 10 senators per SPR. Senators could be elected directly or indirectly by SPR legislatures or by the SPR representatives in the National Assembly. We favour a system of indirect election for the Senate for the transitional period. This will provide the necessary link between SPR interests and the constitution making process, and will do so in a way which ensures that the first general election is not unduly complicated. This will not preclude the adoption of a system of direct election of a Senate if the constitution making body decides that a bicameral system should be adopted for the future. 7.1.2 Powers of the legislature Parliament for the period of transition, will have full legislative powers,
which means that all laws must be adopted by it subject
to the provisions of the
Constitution. Immunities and privileges of Parliament and its members should be
regulated by law. 7.1.3 Procedures During the transitional period Parliament will have to pass ordinary laws,
laws dealing with the budget and appropriations and may
even have to amend the
constitution for the period of transition. Different procedures and deadlock
breaking mechanisms must be devised
for these different kinds of legislation. In
the draft constitution we have dealt with these issues as follows: 7.1.3.1 We consider that it is important that the Senate be involved in legislation during this period, which will involve the phasing in of the new SPRs, and will also be a time when close co‑operation will be required between the national legislature and SPR legislatures. We have therefore provided that ordinary legislation should generally be passed with a majority in both the National Assembly and the Senate. If the Senate rejects a bill, a joint meeting of both houses will be held so that they can attempt to resolve their differences. The legislation could then be passed by a majority at such a joint sitting. To facilitate co-operation and where possible, to avoid disagreements arising between the two houses, provision is made for a system of standing joint committees of the National Assembly and the Senate. The requirement that there be both SPR and national lists for the election of the National Assembly ensures that SPR interests will be adequately represented in the National Assembly and in the joint sitting. 7.1.3.2 Money bills (namely budgetary measures and appropriation bills) must also be approved by both the National Assembly and the Senate, but in the case of rejection by the Senate, such bills could be adopted by the National Assembly with an ordinary majority. 7.1.3.3 Bills concerning specific SPR matters
must also be approved by the National Assembly and the Senate. However, should
the Senate reject such a bill, it cannot be overruled
by the National Assembly.
A bill which affects a particular region or regions only, must be approved by a
majority of the Senate
representatives of that particular region or
regions. 7.1.3.4 It may be necessary for technical reasons to amend the Constitution for the transitional period in order to address situations which have not been contemplated or difficulties which are encountered in the application of the Constitution. A distinction must be drawn between fundamental provisions such as the Constitutional Principles, and key aspects of the constitution making process, which should not be amended, and other provisions of the Constitution which may be capable of being amended. We have provided that these core provisions cannot be amended by the legislature during the period of transition. We have also made special provision for the protection of SPR boundaries and SPR interests. Other amendments to the constitution for the period of transition, which are not designed to subvert the essence of the Constitutional Principles, can be passed by a two-thirds majority of both the National Assembly and the Senate, sitting together in joint session. The reason why Constitutional Principles, and the key aspects of the constitution making process should not be amended by the legislature during the time of transition, is that these provisions are contained in a solemn pact agreed upon by the parties in the MPNP, and constitute the basis of the future constitutional state and constitution making process. Constitutionally, once the MPNP is dissolved, there will be no other body which can change this solemn pact, which must remain binding until the new constitution has been adopted in accordance with its requirements. 7.2 The Elected Body as Constitution Making Body This is dealt with in Chapter 5 of the Draft Outline. The process which is contemplated by the Draft Outline of the Constitution for the transitional period, can be described as follows: 7.2.1 The MPNP, through the adoption of a solemn pact of Constitutional Principles, has laid the foundations of the future constitutional state. The elected body acting as a constitution making body, will have the legitimacy to perform the task of giving precise form and content to the constitutional state. In doing so, the elected body (whether it acts as legislature or constitution making body) must act in terms of the constitution for the period of transition drawn up and approved by the MPNP. 7.2.2 In strict constitutional terms, the nature and task as well as the functions of the elected body acting as a constitution making body could be described in the following way: The elected body, acting in accordance with the precepts of the Constitutional Principles, concluded as a solemn pact by the MPNP, is specifically charged under the constitution for the transitional period, to undertake a total revision of that constitution Constitutionally, total revision of a constitution means the writing of a new constitution. There are various precedents for this elsewhere in the world. An understanding of the process in this way, namely that an elected body, authorized and charged to do so by the MPNP, will undertake a total revision of the Constitution, within prescribed forms, and will adopt a new constitution according to prescribed specified majorities within prescribed time frames will, we believe, put he contemplated processes in their proper context. 7.2.3 The elected body acting as constitution making body,
should be seen as separate from the elected body acting
as legislature or
Parliament. It has therefore been provided in the draft that we have prepared,
that for the purposes of totally
revising the constitution, the elected bodies
will sit together. The National Assembly and Senate sitting jointly will be the
constitution
making body. The constitution making body should be given an
appropriate name - those suggested so far are: Constitutional Conference;
Constitutional Assembly; Parliament in Constitutional Conference or Constituent
Assembly. In the draft text we refer to the CMB, but an appropriate name
must be chosen, and used in the text of the constitution. To indicate
its
constitution making task, the CMB will have its own chairperson, and provision
is also made for the CMB to appoint its own commissions,
technical and
parliamentary committees and advisory bodies to assist it in its task. 7.2.4 The general constitutional principles which are agreed to by the MPNP in the form of a solemn pact are fundamental to the total revision to be undertaken by the CMB. As stated above, these principles cannot be amended. On completion of the total revision in accordance with the provisions of the constitution for the transitional period, the CMB must submit its draft of the new constitution to the Constitutional Court for endorsement. 7.2.5 The CMB, by the specified majority, and with the endorsement by the Constitutional Court, could if it so decides adopt certain separate parts of the constitution before the total revision has been completed. It may be possible for instance for SPR constitutions to be adopted in this way if a decision is taken that there should be such constitutions. This will, of course, only be possible if the SPR constitutions are designed in ways which ensure that they will be compatible with the new national constitution when it is ultimately adopted. 7.2.6 The total revision of the Constitution has to be
completed within a period of two years. If this is not done
a draft
Constitution adopted by a simple majority of the CMB, and endorsed by the
Constitutional Court, may be submitted to a popular
referendum. If the draft is
ratified by a specified majority in the referendum it shall become the new
Constitution. If it is not
adopted, or if a referendum is not held, then
Parliament shall be dissolved, new elections shall be held, and the total
revision
shall be undertaken by the new Parliament and be completed within a
period of one year.
8.1 In formulating the powers and functions of the SPRs in Chapter 9 of the attached Draft Outline we have made provision for the establishment and implementation of elected SPR government during the transitional period on a flexible basis under the supervision and co-ordination of the national government and the constitution making body as well as a Financial and Fiscal Commission and a Commission on SPR government, on both of which SPRs will be represented. 8.2 This flexibility seems to us to be necessary for various reasons. 8.2.1 First, the details of the allocation of powers and functions by the
constitution-making body to SPRs, within the framework of
the Constitutional
Principles, may prove to be different to any allocation of such powers and
functions to them under the constitution
for the transitional period. Until the
final allocation has been made, it seems to us to be appropriate that the SPRs
should have
concurrent rather than exclusive powers, and that there should be
consultation and co-operation between the National Government and
the various
SPR governments in the exercise and implementation of such powers. 8.2.2 There will inevitably have to be a rationalisation and reallocation of
posts from existing administrations to new administrations.
The TBVC states,
the Self-governing Territories, and the Provinces will no longer exist, and the
former employees of these administrations
will, where possible, have to be
accommodated in administrations to be established by the new SPRs. If material changes are made in the functions and responsibilities of the National Government, this will also have an impact on the structure and functions of existing government departments. How the various former administrations can best be incorporated into the administrations to be created under the constitutional arrangement for the transitional period, will depend not only on the number, boundaries and administrative capitals of the new SPRs, and their relationship to the number, boundaries and administrative capitals of the former administrations, but also on the allocation of powers and functions to the National Government and the SPR governments in the transition. The Constitution for the transitional period will have to make provision for the transfer of responsibilities from existing structures, to structures to be created under the new constitution, and for this to be done in a way which least disrupts the functioning of the civil service in all its aspects and delivery of services throughout the country. 8.2.3 Another factor favouring the phased
introduction of SPR government is the need to establish a uniform
system of law
nationally, as well as uniformity within the different SPRs. The legal order
existing immediately after the elections
will include pre-existing legislation
of the Tricameral Parliament, Provincial Ordinances, TBVC legislation, and
legislation of the
Self- governing Territories. In some SPRs all these forms of
legislation will have to be accommodated. The constitution can provide
a
framework for the rationalisation, but there will be a need for close
co-operation between the national government and the SPR
governments in sorting
out the problems that will arise. There will also be a need to co-ordinate and rationalise existing structures for the administration of justice including possibly the establishment of new courts and the maintenance of law and order. Here too the national government will have a crucial role to play in the process of co-ordination and restructuring. 8.2.4 It may be possible for certain preparatory
work and planning to be undertaken by the TEC in the
period between the
enactment of the Constitution for the transitional period and its coming into
force. We suggest that consideration
be given to appointing a Secretariat for
each SPR (we assume that this would be done by the TEC), and for these
Secretariats to be
charged with the task of making preparations for the changes
which will occur when the Constitution for the transitional period comes
into
force. Their work would include the identification of all administrations and
providers of services within the boundaries of
the new SPRs, the differences in
the statutory regimes under which portions of the new SPRs may previously have
been governed, and
what may be needed to establish a uniform legal order and
effective administration. The Secretariat could report to the TEC and
carry out
all other duties allocated to them by the TEC. They could also be made
responsible for convening the first meetings of
the SPR legislatures, and
conducting elections within the SPR legislatures for the appointment of the
various elected positions. But even allowing for this, it seems to us to be likely that much of the restructuring will have to take place after the Constitution for the transitional period has come into force, and political decisions have been taken by the newly elected SPR legislatures in regard to the establishing and staffing of departments for the implementation of the responsibilities entrusted to them. There will have to be close co-operation between the National Government and the SPR governments during this period to ensure that there is no breakdown in services, and the National Government will clearly have a crucial role to play in the supervision and implementation of the restructuring. 8.2.5 In our view the best way of ensuring continuity of services and of rationalising and co-ordinating the existing administrations is to require the rationalisation and co-ordination to be done by the National Government and the SPR governments in co‑operation with each other. When necessary, the National Government will be able to take responsibility for the continuity of services while the new SPR administrations are being set up, and to transfer appropriate functions to the SPR administrations as soon as they are in a position to assume responsibility for them. Some SPRs may have the infrastructure to take on administrative responsibilities sooner than other SPRs. We propose the establishment of a Commission on SPRs which will have the task, inter alia, of facilitating the process of establishment of SPR governments during the period of the transition as well as the development of the final SPR dispensation. 8.2.6 The need for flexibility and co-operation between the National Government and SPR governments during the transitional period, are factors which favour proportional representation in the executive, and a bicameral legislature in which one chamber will consist of SPR representatives. The Draft Outline of the constitution that we have formulated makes provision for these structures, as well as for proportional representation in the SPR executives. 8.3 In line with the equilibrium suggested in our Sixth and Seventh Reports we have made provision in the preliminary texts for a process according to which SPR constitutions would be formulated and adopted, possibly even prior to the adoption of a new national constitution and subject to the approval of the CMB. 8.4 We have continued to use the expression SPR in our Reports and in the Draft Outline. A decision, must however, be taken in regard to the term which will be used to describe these entities in the text of the Constitution.
SUBMISSIONS RECEIVED BY THE TECHNICAL COMMITTEE ON CONSTITUTIONAL ISSUES principles
which Position Papers will be Presented to the Negotiating Council
issues
constitutional issues
22. College of Magoshi in 19105/93 Contribution on role of traditional Lebowa Leaders
23. lnyandza National 19/O5/93 Form of state and constitutional Movement
principles 36. Cape Province Traditional 38. Afrikanervryheidstigting Prof. A W G Raath 19/O5/93 Selfbeskikking en Sessessie: Die Saak van die Afrikanervolk 39. Afrikaner Freedom Technical Committee on Self‑determination, Form of State, the Future of the TBVC States and other Related Matters Central, Regional and Local Levels of Government Making in South Africa 48. Government of Bophuthatswana 21/O5/93 Submission by the Government of Bophuthatswana on the Second Report Traditional Leaders and Indigenous Forms of Government 67. lnyandza National Movement 09/O6/93 Submission: Form of State and Constitutional Principles. 68. Bophuthatwana 72. Cape Traditional 74. Women's National Coalition 15/O6/93 Comments on
Third Report 75. Kwasizabantu Ministers'
Constitutional Rights and Issues the Central and Regional Levels
of Government. Federal Republic of South Africa 86. IFP, Kwazulu Government Afrikaner Volksunie, Conservative Party, Bophuthatswana and Ciskei 90. The English Academy of 92. Department of Mineral and Regions 95. Civil Aviation and Defence Constitution Constitutional Issues (15/6/93) |