|
THE FIFTH REPORT OF THE TECHNICAL COMMITTEE ON
CONSTITUTIONAL ISSUES
TO THE NEGOTIATING COUNCIL
15
JUNE 1993
Background
1.1 The Draft Resolution on Constitutional Issues presented to
the Negotiating Council by the Planning Committee on I June 1993, contains
the
following
paragraph:
2. There is a need for the adoption of a Constitution for
the transitional period, the text of which is agreed to at the Multi-Party
Negotiating Process:
2.1 Which shall be drafted in accordance with the constitutional principles
agreed upon in so far as they may be applicable,.
2.2 Which will provide, inter alia, for justiciable
fundamental rights, the structure of national and regional governments and their
respective powers, functions and authority; and
2.3 As well as which will provide for the procedures relating to the drafting
and adoption of a Constitution by the elected constitution-making
body.
1.2 Despite reservations made by some of the participants in regard to
paragraph 2 of the draft resolution, there was general agreement
that we should
proceed in terms of paragraph 3. Paragraphs 3.3 and 3.4 require us to make
recommendations to the Negotiating Council
on:
3.3 The procedures to be
followed in the drafting and adoption by the Multi-Party Negotiating Forum of a
Constitution for the transitional
period.
3.4 The procedure to be followed
thereafter in the drafting in and adoption of a constitution by an elected
constitution making body
.
1.3 Our understanding of this instruction and the debate in the Negotiating
Council is that we were to proceed on the premise that
despite the reservations
concerning paragraph 2 of the draft resolution (quoted above), consensus might
be reached once the details
of the transitional process and structures
contemplated in paragraph 2 have been developed and debated.
1.4 A few
participants have suggested in submissions to us that we have misunderstood our
instructions as set out in paragraph 3 of
the Draft Resolution. We have
considered these submissions, but are of the opinion that the manner in which we
are proceeding is
clearly in accordance with our instructions, and our Fifth
Report has been prepared on that basis.
2 Outline of the process
2.1 The process whereby
an elected constitution making body will formulate and adopt a new constitution
in accordance with agreed
constitutional principles is discussed in paragraph 5
of our Second Report.
2.2 The legislative framework that has been advocated
for the entire process makes provision for:
2.2.1 A
Transitional Executive Council.
2.2.2 An Independent Electoral
Commission.
2.2.3 An Independent Media Commission.
2.2.4 A constitution for the transitional period which will make provision
for the holding of elections for the government of the
country during the
constitution making phase, and the functioning of the elected constitution
making body.
2.3 Whether or not it is desirable to establish a
Transitional Executive Council, an Independent Election Commission and an
Independent
Media Commission, and if it is, the legislation necessary for such
purposes, is being dealt with by other technical committees, and
we are not
required to make any recommendations thereon. We are required in terms of our
instructions to deal with a constitution
for the transitional period, and it is
that issue that we address in this report.
3 The development and
formalisation of a Constitution for the transitional period
3.1 The
Constitution for the transitional period should emerge cumulatively from the
development of a political consensus within the
MPNP. The exact formulation of
different parts of the text of this Constitution should be developed in the
light of the reports
of the relevant Technical Committees appointed by the
Negotiating Council, and the debates thereon in the Council.
The work of other institutions such as the Commission on the Demarcation/
Delimitation of Regions will also be material.
3.2 Since the MPNP does not
have legislative powers, the Constitution for the transitional period will have
to be adopted formally
by Parliament. This means that the final text agreed
upon, should conform to all the technical requirements of a draft
Bill.
4 Elements of a constitution for the transitional
period
4.1 The constitutional principles will bind the constitution making body
established by the Constitution for the transitional period,
and should also be
taken into account in the drafting of the transitional Constitution
itself.
4.2 We propose to develop draft texts dealing with the elements
of the Constitution for the transitional period in sequence. In developing
the
text, agreement should in our view be sought systematically. For this purpose
we recommend that the elements of the Constitution
for the transitional period
be considered in the order set out below.
4.2.1 The composition and
functioning of the elected body
Components of this element of the
Constitution will include:
4.2.1.1 If it is to function as a national
legislature, its composition for such purpose, its election and the way in which
it will
take its decisions.
4.2.1.2 Its composition as a constitution making
body, its election and the way in which it will take its
decisions.
4.2.1.3 How disputes in regard to decisions will be resolved and
deadlocks broken.
4.2.2 The composition and functioning of the
national executive
Considerations under this heading include:
4.2.2.1 Participation in
the executive.
4.2.2.2 The location and nature of the powers and
functions of the Head of State and executive government.
4.2.2.3 The
constitutional relationship between the executive and the
legislature.
4.2.3 The location of the judicial power, the composition
of the judiciary and the nature of the judicial function
Matters to
be addressed in this respect will include:
4.2.3.1 Adjudication
of the provisions of the Constitution, including the protection of
fundamental rights and
adherence by the constitution making body to the
constitutional principles.
4.2.3.2 The appointment and jurisdiction of
judicial officers.
4.2.3.3 Continuity of the judicial
function.
4.2.4 Fundamental Rights
This element is being dealt with by the Technical Committee on Fundamental
Rights during the Transition.
4.2.5 Powers, functions and structures
of SPR's during the transitional period
The powers and functions of
SPR's during the transition are dealt with in our Fourth Report. In addition to
the matters addressed
in our Fourth Report, the following will have to receive
consideration:
4.2.5.1 Legislative and executive structures within the SPR's
during the transition.
4.2.5.2 The formulation of the powers and functions of
the national and SPR governments during the transition.
4.2.5.3 Representation of SPR interests in national
institutions.
4.2.5.4 The process of rationalisation of existing
administrations within the SPR boundaries.
4.2.6 Other matters,
structures, procedures and arrangements
These will
include:
4.2.6.1 A preamble.
4.2.6.2 National symbols and official
languages.
4.2.6.3 Possibly a special procedure for the
establishment of the final SPR structures, powers and functions
by the
Constitution making body.
4.2.6.4 Finance.
4.2.6.5 Other institutions.
4.2.6.6 General and transitional provisions.
4.2.7 We deal below with aspects of the preceding matters which will have a
bearing on the structure of the constitution, and for
that reason, should be
given priority by the Negotiating Council when the constitution for the
transitional period is debated. The
structures can then be developed in
accordance with the debates and decisions of the Council. In each
instance, before
formulating the specific issues that call for decision, we
discuss the context in which the issues have arisen.
5 Matters affecting
the structure of the constitution for the transitional period
5.1 Composition and functioning of the elected body
5.1.1 In the debates in the Negotiating Council and in their submissions to
us, some of the participants make the point that a constitution
can always be
amended or replaced by parliament in accordance with procedures prescribed for
that purpose. On that basis it is argued
that it is fallacious to refer to a
"transitional constitution" and contend that a complete and comprehensive
constitution should
be drawn up by the MPNP at this stage. It is correct that
constitutions can be amended. There is, however, a difference between
drawing
up a constitution for the indefinite future, and drawing up a constitution for a
transitional period of limited duration,
in the knowledge that during that
period a body elected for that purpose will be given the specific task of
drawing up a new constitution
for the indefinite future. It is the difference
between creating a structure which is intended to endure, and creating a
structure
which is intended to be changed. The fact that the first might not
endure, or that the second might not be changed, does not alter
the distinction.
The difference between the participants in their approach to this issue, is a
difference of substance and not of
terminology. It is the difference to which
we have consistently referred in our reports, between those who believe that the
new
South African Constitution should be drawn up and adopted by the MPNP, and
those who believe that it should be drawn up and adopted
by an elected
constitution making body. A two phased process, with built in checks and
balances referred to in our previous reports,
is a possible solution to this
difference which is one of the most fundamental of all the differences between
the parties.
5.1.2 In dealing with the composition and functioning of the
body that will be elected to draw up the constitution, the first question
is
whether it should be vested only with constitution making powers, or whether it
should be vested with legislative powers as well.
Although this issue has been
raised in submissions made to us and it has been argued that the elected body
should function only
as a constituent assembly and not as a legislature, it
seems to be implicit in the instruction to us to address the issue of the
drafting by the MPNP of a constitution for the transitional period, that
provision should be made for the elected body to have both
legislative and
constitution making powers.
5.1.3. The second question concerns the
composition of the elected body. In the detailed submissions that have been
made to us some
parties favour a bicameral, others a unicameral structure. The
bicameral structure generally makes provision for a National Assembly
of 400
members, and a smaller senate to be elected on a regional basis. The unicameral
structure seeks to accommodate regional interests
through an electoral system,
which makes provision for half the members to be elected on regional lists. A
decision needs to be
taken on this issue, both in regard to the constitution
making process and the legislative process. As far as the legislative process
is concerned, it has been suggested that special procedures may be necessary for
legislation dealing with the budget, appropriations,
and regional
affairs.
5.1.4 As far as the constitution making process is concerned, there is
support for the proposition that decisions should be taken
by a two thirds
majority (though 70% has also been suggested) subject to time limits, and the
application of dispute resolution or
deadlock breaking mechanisms if the time
limits are not met. A decision needs to be taken on these issues. Dispute
resolution and
deadlock breaking procedures which have been suggested include
the reference of disputes to the leaders of political parties for
possible
resolution by them, the references of disputes to technical experts for reports,
new elections, referenda, and a combination
of such procedures.
5.1.5 We
therefore suggest that consideration be given in the first instance to the
following issues:
5.1.5.1 Should the elected body have legislative as well as constitution
making powers?
5.1.5.2 Should the elected body be constituted as a unicameral
or a bicameral structure?
5.1.5.3 If a unicameral structure is favoured, how many members should it
have, should provision be made for regional interests to
be represented in the
structure through the electoral system, and how should decisions be taken-
*in the constitution making process;
*and in the legislative
process?
5.1.5.4 If a bicameral structure is favoured, how should each of the
houses be elected, how many members should each have, what role
should each
perform, and how should decisions be taken -
in the constitution making process;
and in the legislative process?
5.1.5.5 Should the process of adopting the constitution make provision
for dispute resolution procedures, and deadlock breaking
mechanisms, with set
time frames?
5.1.6 If it is possible to achieve consensus on most or all of
these issues, we will be able to develop a more detailed framework
dealing with
the composition and functioning of the elected body.
5.2 The composition and functioning of the national
executive
5.2.1 Participation in the executive duping the transitional
period
5.2.1.1 In the interests of inclusivity and acceptability of government
and administration in the period following the elections,
there may be reasons
for the establishment of an executive composed of
representatives of the political parties
emerging from the elections with
significant support.
5.2.1.2 One approach to achieve a multi-party executive
would be to allow the ordinary political process to run its course, which
may
possibly lead to the formation of a coalition government.
5.2.1.3 Another approach (which is being advocated by some of the
participating parties), would be to provide for a procedure in the
constitution
whereby a multi-party executive may be composed, while simultaneously affording
the parties with significant support
a choice to participate in such executive
or not.
5.2.1.4 A decision needs to be taken on this issue by the Negotiating
Council to enable us to formulate a draft on the relevant constitutional
provisions.
5.2.2 Regarding the location and nature of the functions of the
head of state and executive government, the following matters call
for
consideration:
5.2.2.1 How will the head of state be elected for the transition
period?
The only suggestions so far made to us have been that the
head of state should be a President elected by the legislature. This seems
to
be the most practical method in the circumstances.
5.2.2.2 What powers
and functions should be vested the head of state?
Apart from the
usual ceremonial functions, the head of state may be vested by a constitution
with executive and legislative functions.
5.2.2.3 The relationship between the head of state and the legislature and
the executive
This relationship depends upon the powers and functions
vested in the head of state and the checks and balances imposed on the exercise
of such powers and functions by the constitution. One participant has suggested
that certain presidential powers should be exercised
together with the
executive, or together with the leaders of political parties participating in
the executive.
5.2.2.4 How the head of state can be removed from
office?
Provisions are usually made for a method whereby a President
can be impeached by the legislature
and removed from
office.
5.2.3 The executive during the transitional
period
A decision needs to be taken as to how the cabinet will be
appointed and composed and how it will function.
5.2.4 The constitutional relationship between the executive and the
legislature during the transitional period
The measure of separation
of powers relating to the legislative and executive functions will determine
questions regarding, inter
alia, assent to legislation, the accountability of
the executive to the legislature, whether ministers may be appointed only from
the elected ranks of the legislature or otherwise, the question whether draft
legislation may be initiated by ordinary members of
the legislature or only by
ministers, and the right of the head of state and ministers to address the
legislature on their own initiative
or only on request/demand by the
legislature. Debate and agreement on these matters in the Negotiating Council
is called for.
5.3 The judicial function under the Constitution for the transitional
period
In order to enable a beginning to be made in the framing of
constitutional provisions regarding the judiciary, clarity on the following
crisp issues is
necessary:
⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠
5.3.2 Should the judiciary be given the jurisdiction to decide issues
emanating from the provisions of the Constitution, including
conformity of
constitutional legislation to the binding constitutional principles and the
protection of fundamental rights?
5.3.3 Should judicial structures other than the ordinary courts be
established for the adjudication of constitutional
matters?
⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠6.
Outstanding
matters
6.1 The issues concerning the SPR's during the transitional period raised
in paragraph 4.2.5 above will be addressed by us in the
light of the debate and
the decisions taken in response to our Third and Fourth Reports.
6.2 We propose to deal with the issues raised in paragraph 4.2.6 after the
framework of the constitution has been developed.
CONSTITUTIONAL
MAKING
PROCESS
⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠⌠
- The
Technical Committee on Constitutional Issues has been requested to make
recommendations to the Negotiating Council on, inter alia,
" the constitution
making process to be followed, including the structures that need to be
established for that purpose".
2. The recommendations contained here
under are conditioned by three critical considerations contained in the draft
Resolution on
Constitutional Issues being that the Negotiating Council would
endeavour to reach agreement on:
2.1 constitutional principles;
2.2 the detailed principle dealing
with allocation of powers at different levels of government, and
2.3 the
adoption, at the Multi-Party Negotiating Process, of a constitution for the
transitional period.
3. The Draft Resolution is open to no other
interpretation than that the constitution making process envisaged by the
Council would
or should occur in more than one phase. Three phases of
constitution making are readily identifiable, being:
3.1 Phase 1: pre-election transition covers the present period
[including
ℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜℜ
3.2 Phase
2: post election transition includes the period immediately
after
the elections up to the adoption of a final constitution by
the
constituent assembly, and
3.3 Phase 3: post constituent
assembly period
4. Hereunder appears the structural and functional
framework of the envisaged constitution making process. At this stage no debts
relating to the duties and form of each contemplated institution or step has
been set out. Most of the steps set out hereunder are
a subject of separate
detailed enquiry by other technical committees or commissions. Once a
particular constitution making model
has been adopted by the parties in
principle the necessary particularity may be inserted in respect of each
process, step or structure.
5. Phase 1: pre-election
transition:
Pre-election transition contemplates the following matters,
steps or processes which will have to be decided upon or implemented by
the
MPNP:
5.1 adoption of constitutional principles
5.2 adoption of principles of regional
government
ℜ
5.3 determination of the date of elections for a
constitution making body
5.4 determination and the adoption of
procedure for the incorporation of
5.4.1 TBVC countries, and
5.4.2 self-governing national states
5.5 the adoption of the
recommendation of the Commission on Demarcation of Regions.
5.6 the
establishment of:
5.6.1 Transitional Executive Council
5.6.2 Independent
Media Commission
5.6.3 Independent Electoral Commission
5.6.4 Commission
on Security Matters
5.7 adoption of a constitution for the transitional
period.
6. Phase 2: post-election transition
As a sequel to
the election of a constitution making body, the following steps or process will
have to be implemented in the manner
specified in the constitution for the
transitional period or some other binding instrument promulgated or brought into
force in terms
of the constitution for the transitional
period.
6.1 establish [transitional] National Executive government
[cabinet]
6.2 establish [transitional] Regional Executive
governments
6.3 establish constituent assembly - [transitional]
National Assembly
6.4 establish [transitional] regional legislatures,
[if any]
6.5 draft and adopt new constitution .
7.
Phase 3: post -constituent assembly period:
7.1 election in
terms of the final constitution
7.2 establishment of the following
structures
7.2.1 national assembly
7.2.2 national executive government
7.2.3 regional executive
government
7.2.4 regional legislatures
8. Some of the parties have
proposed that the present MPNP draw the final constitution subject to such a
constitution being amended
by the legislature in terms of amendment procedures
contained in the constitution. This proposal implies a one phase transition,
which entails the following steps, or processes:
8.1 adoption of
constitutional principles
8.2 adoption of a detailed principle on regional
government
8.3 adoption of recommendations of the Commission on Demarcation
of Regions
8.4 establishment of regional executive
government
8.5 establishment of regional legislative
government
8.6 determination of an election date
8.7 holding of national elections
8.8 establishment of national
executive government and legislature.
9. The so called "bottom-up"
constitution making process implies that finality in drafting and adopting of
the national constitution
can only occur once the regional constitutions have
been drawn and the regional governmental structures have been established. We
respectively point out that if this one stage " bottom-up" constitution making
process were to be adopted immense practical difficulties
would
emerge.
RESPONSE BY THE TECHNICAL COMMITTEE ON CONSTITUTIONAL
ISSUES TO SUBMISSIONS RECEIVED FROM CERTAIN PARTICIPANTS IN RESPONSE THE THIRD
REPORT AND FOURTH REPORTS OF THE COMMITTEE
- .
We have received comments on our Third and Fourth Reports from the
Inkatha
Freedom Party, the KwaZulu Government, the
Bophuthatswana Government and the Afrikaner -Volksunie. We deal briefly with
these responses in our report.
2. An underlying theme of the responses
from each of the participants is that greater powers should be allocated to the
SPR's than
is allowed for in our Third Report. We appreciate that these
participants favour the granting of more extensive powers to the SPR's
than is
contemplated by the provisions contained in paragraph 3 of our Report. On the
other hand, paragraph 3 of our report allocates
more powers to the SPR's than
some of the other participants have allowed in their submissions to us. Our
report offers a compromise
between the two conflicting positions on a basis
which seems to be both reasonable and rational in the circumstances which exist
in South Africa. Our reports were unanimous in so far as the allocation of
powers to National Government and the SPR's is concerned,
is consistent with the
report of the deliberations of the independent experts of different political
persuasions to which we refer
in the footnote to paragraph 3 of our Third
Report. We do not think that good purpose will be served by addressing all the
issues
which have been raised. In the main, they relate to the constitution
making process and the question whether the constitution should
be made by the
MPNP or an elected constitution making body. These participants want the
powers, functions and boundaries of the
SPR's to be fixed by the MPNP and to be
protected against subsequent change by an elected parliament or constitution
making body.
These are matters of principle which ought to be debated in the
Negotiating Council, and not independently with us. We deal briefly
with some
of the contentions advanced to us by these participants in their comments on our
Third and Forth Reports.
3. The Inkatha Freedom Party and the KwaZulu
Government
3.1 We received two documents from each of the Inkatha Freedom Party and
KwaZulu Government, one commenting on the constitutional
principles referred to
in our Third Report, and the other commenting on the terms of our Forth Report.
Since the documents are substantially
in the same form we respond to both sets
of documents in this paragraph.
3.2 A number of questions are asked
concerning the applicability of the constitutional principles to a federal
structure of government.
We are satisfied that the constitutional principles
contained in our Third Report are entirely consistent with federalism, that
this
option is not precluded by the principle that South Africa should be a single
sovereign state, and that SPR's and the National
Government could be required to
comply with all the constitutional principles without the result being
inconsistent in any way with
federalism. The constitution itself would be
binding on all levels of government, though particular provisions might be
relevant
only to the National Government, or an SPR Government. Insofar as the
principles are of general application, we consider that they
should be binding
on the SPR as well as the National Government, and we would not favour any
system of SPR Government which did not
require the SPR's to conform with such
principles.
3.3 A number of questions are directed to the use of
sovereignty. If it is contemplated that sovereignty should vest in the SPR's
so
that each is constituted as a sovereign state, allowing only such powers to the
National Government as they may from time to time
choose to give to it, as is
suggested in the constitutional proposals of the KwaZulu Government, the
resultant structure would be
more in line with confederalism than federalism.
We indicated clearly at the time we presented our Third Report that paragraph
2.1
of the general constitutional principles is not consistent with
confederalism, which contemplates the existence of more than one
sovereign state
within the borders of South Africa.
4. The Bophuthatswana
Government
4.1 The Bophuthatswana government makes it clear that it does not accept
the assumption of the reincorporation made in paragraph 2.
1. (A) of our Forth
report. This is a question of debate within the Negotiating
Council.
4.2 Questions are raised in regard to the political authority
which will exist over the areas which were formerly within the TBVC
states if
reincorporation were to take place, and how continuity of services is to be
dealt with. We will address some of these
issues in reports which are presently
in the process of being prepared and which will be submitted to the Negotiating
Council as
soon as they are ready.
4.3 The main theme in the comments by the
Bophuthatswana Government is that it is undesirable for an elected constitution
making body
to be in a position to take decisions concerning the powers,
boundaries and functions of the SPR's that are inconsistent with the
provision
of the constitution adopted in the MPNP for the transitional period. It
contends that:
"It does not make sense to have complete governments with
decision making powers in place, only to be replace or adjusted after the
period
of transition. The period of constitutional development should, as far as
possible, build on the previous. Better guarantees
should thus be provided to
ensure that powers and/or boundaries should not be tampered with. "
The same reasoning underlies the reasons of those who contend that SPR's
should not be established at the transitional stage.
Our report is a
compromise between the view of those participants who favour a system of
regional administration being implemented
during the transitional period, making
use of existing provincial structures and the legislative framework which
presently regulates
them, and those who seek to have the powers, boundaries and
functions of the SPR's finalised and established before elections take
place.
This is the fundamental conflict to which we have referred, and the thrust of
all our reports has been to attempt to find
a compromise between the two
positions, whereby principles are established at the MPNP, but final decisions
are taken at the elected
constitution making body.
5 . Other
Participants
Apart from the large issues of where and by whom decisions
should be taken, with which we have already dealt, the comments of the
Afrikaner-Volksunie concerns matters which need to be debated in the Negotiating
Council. This is also the case in respect of comments
which we have received
from the Democratic Party, the National People's Party and the Cape Traditional
leaders.
EMBARGOED (PAGES 1-13)
UNTIL DELIVERY/TABLING IN
NEGOTIATING COUNCIL MEETING
| 
