The South African Constitution

As soon as the election was over, the major political parties sat down to draft a new constitution. The government made a public call for anyone to submit recommendations for the constitution. An extraordinary 1.7 million submissions came in.

Constitutional negotiations were difficult and prolonged. Both the National Party, which until 1994 had governed the country, and the African National Congress wanted the new government to reflect the values of their own party. Yet both sides knew that unless all were at least minimally satisfied, sectarian violence could break out; a military coup was even possible. The new constitution was signed into law on March 21, 1996—a major turning point in South African history. The town of Sharpeville, where in 1960 the government had massacred 69 people peacefully protesting against apartheid passes, was chosen for the signing.

The bill of rights became the first major section in the new constitution, following the preamble (and founding provisions). Many consider this bill to offer the most extensive human rights in the world. In the South African constitution, certain rights are considered so important that they are “non-derogable,” meaning that they cannot ever be reduced. Among these are the listed categories “equality,” “dignity,” and “life”—including the right to life, the right to be free from torture, and the right to be free from slavery. The following is the text of the preamble of the constitution.

Preamble

We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to —

          Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;

          Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;

          Improve the quality of life of all citizens and free the potential of each person; and

          Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

May God protect our people.
Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika. ¹

What follows is a list of the subsections that make up the bill of rights. In the constitution, the bill of rights begins with the number 7, so the same numbering is used here. After two introductory sections (numbers 7 and 8), 22 major rights are listed; under each of these, specific detailed provisions are given. The titles for all 22 rights in the constitution are presented here.

Bill of Rights

7. Rights [a brief overview of the 22 rights]
8. Application [an explanation of how these rights will be applied]
9. Equality
10. Human dignity
11. Life
12. Freedom and security of the person
13. Slavery, servitude and forced labour
14. Privacy
15. Freedom of religion, belief and opinion
16. Freedom of expression
17. Assembly, demonstration, picket and petition
18. Freedom of association
19. Political rights
20. Citizenship
21. Freedom of movement and residence
22. Freedom of trade, occupation and profession
23. Labour relations
24. Environment
25. Property
26. Housing
27. Health care, food, water and social security
28. Children
29. Education
30. Language and culture
31. Cultural, religious and linguistic communities
32. Access to information
33. Just administrative action
34. Access to courts
35. Arrested, detained and accused persons
36. Limitation of rights
37. States of emergency
38. Enforcement of rights
39. Interpretation of Bill of Rights

Each of these 22 rights includes detailed provisions. Below are the provisions for two of them:

Right 9: Equality

1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Right 26: Housing

1. Everyone has the right to have access to adequate housing.
2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. ²

Connection Questions

1. As you read the language of the preamble, what words and phrases stand out? How does the constitution respond to the history of racial oppression?
2. How does the South African constitution address the idea of equality? What can a constitution do to promote equality? What are the limits of what it can do?
3. In writing a new constitution, the leaders of South Africa had the opportunity to start over. If you were to write a new constitution and bill of rights for your country, what would you include?

• 1Each of these statements is the same, only in a different South African language.
• 2The Republic of South Africa, “The Constitution of the Republic of South Africa, 1996,” Department of Justice and Constitutional Development website.