A New Contstitution Fudging The Main Concerns

General agreement was achieved partly by fudging matters, by ambiguous clauses or qualifying principles by means of ‘escape’ clauses. For example, the text appeared to have certain federal characteristics, such as the vesting of some exclusive powers in the provinces; but these were largely negated by ‘over-rides’ that could be employed by the national government to ensure that provinces stayed in line.

Moreover, the revenue-raising capacity of provinces was severely circumscribed. The description of the constitution as a hybrid federal-unitary model was misplaced – it was little more than a unitary constitution with federal fig leaves. 

The agreement on the medium of instruction in schools, which in effect meant Afrikaans as a single medium of instruction, is an example how the ‘escape’ clause was used to paper over real differences. Schools were permitted to offer single medium tuition, but subject to considerations of equity, practicability and the need to redress the results of past discrimination.

Comparable clauses qualified the principle of equality and non-discrimination by permitting affirmative action, and the right to own property, which was subject to expropriation but only in terms of a general law and with payment of compensation. The text of the constitution was put to the vote on 8 May 1996. The ANC, NP, DP and PAC voted in favour – 421 votes (327 votes were required for a two-thirds majority). The Freedom Front abstained, the IFP boycotted the proceedings as it had done for much of the CA’s negotiations; and the ACDP voted against. 

The text was submitted to the Constitutional Court, made up of some of the finest legal minds in the country. It concluded that the basic structure of the constitution was sound. After some technical amendments were made, the Constitutional Court approved the revised text, and President Mandela signed it into law as The Constitution of the Republic of South Africa, Act 108 of 1996.

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