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9th December 1994
1. Introduction
The Afrikanerbond, which
expresses the views of a specific component of the South African population,
intends to submit constructive
proposals regarding the content and formulation
of the new constitutional text, to the best of its ability, to the
Constitutional
Assembly for the duration of its existence. This memorandum is
intended to provide some background to this intention and to submit
a first
concrete proposal for consideration.
2. The Afrikanerbond and its
interest in the constitution-writing process
In terms of article 4 of the
Afrikanerbond's constitution (a copy of which is attached hereto), its purpose
is service to the Afrikaans
community and development towards excellence in all
areas, also in the interests of all South Africans. The organisation consists
of Afrikaans speaking persons who have been recruited on the grounds of their
subscription to the attached constitution, their competence
and community
leadership. The membership is geographically distributed across the country and
jointly represents a significant component
of the country's reserve of
expertise.
Mainly due to the fact that the Afrikanerbond was (under the name
Afrikaner Broederbond) until its restructuring at the end of 1993
a confidential
organisation, sensational and sinister motives and modes of operation were often
ascribed to it in the course of its
75 year existence. Suspicion that such
motives and methods still exist continues and we accept that it will, for some
time to come,
probably continue among the uninformed. Nevertheless the
organisation wishes to continue its activities in good faith in the hope
that
the results thereof will be 'urged on merit and not with unjustifiable
prejudice.
3. The Afrikanerbond's intended contribution to the
constitution-writing process
The Executive Council of the Afrikanerbond has
appointed an expert constitutional committee and instructed it, inter alia, to
prepare
inputs for submission to the Constitutional Assembly. These inputs may
cover every aspect of the work of the Constitutional Assembly
that is open to
public comment.
Attention is drawn to article 7 of the attached constitution
where it is stated unequivocally that the organisation is not aligned
to any
political party. This given fact causes the Executive Council of the
Afrikanerbond's constitutional committee to be free
to formulate inputs without
regard to any party political bondage.. the inputs will however naturally be
formulated in the spirit
of the foundation, purpose and aims of the
Afrikanerbond itself, as expressed in articles 3, 4 and 5 of its attached
constitution.
4. Proposal concerning the foundation in principle of
the new Constitution
The South African Constitution of the 21st century
must, according to the unamendable prescription of Constitutional Principle IV
contained in Schedule 4 to the present Constitution, enjoy an elevated status in
law as the supreme law of the land. Such Constitution
is, according to the
modern rules relating to constitutional interpretation, interpreted in
accordance with the foundations of principle
upon which the Constitution itself
was constructed. This approach has already been gaining acceptance in South
African law and 'jurisprudence
since the coming into operation of the present
Constitution.. see Qo--elenl v Minister of law acid Order 1994 3
SA 625 (ECD) and the authorities relied on in the judgment.
Where a
Constitution however does not expressly provide for such a foundation of
principle, as is the case with the present Constitution,
the potential exists
that it will be interpreted inconsistently and with some confusion. Such is
especially the case with a negotiated
constitution that must inevitably provide
for the accommodation of a multiplicity of political and ideological points of
departure.
The Constitutional Assembly now has, at the beginning of
its drafting activities, a unique opportunity to lay a solid foundation both
for
the remainder of its task, as for the coherent interpretation of the
Constitution that is to be drafted. It is submitted that the first
drafting task of the Constitutional Assembly should be the
development of consensus on what the foundation in principle of
the future Constitution should be. Such foundation could for
example be contained in an introductory provision and must have the character of
our primary national constitutional
ideal.
It is submitted that the flowery
language which is usually associated with a constitutional preamble will not be
appropriate for such
purpose, that the proposed foundational provision should
nevertheless have a unifying and mobilising effect, should compactly give
expression to the values contained in the Constitutional Principles and should
have a character which will provide future interpreters
of the Constitution
(especially the courts) with an objective measure of interpretation useful for
stable, meaningful contextualisation
of the provisions of the Constitution in
ever-changing circumstances. Therefore the following wording is submitted for
consideration-
The Republic of South Africa is a constitutional state founded
in justice, order and the well-being of its citizens.
It is submitted that
the five concepts contained in this phrase should be capable of gaining the
support of all interests represented
in the Constitutional Assembly, but that
they are on the one hand wide enough and on the other hand sufficiently specific
to afford
the new Constitution a distinct character. The five concepts
are
* republic
* constitutional
state
* justice
* order
* well-being of all
citizens
Each of these concepts are rich in meaning. The Afrikanerbond's
constitutional committee is able to expand on the concepts in detail,
either in
writing or by means of oral presentation to the Constitutional Assembly or the
Constitutional Committee.
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