The National Party’s Constitutional Proposals

by Arthur Chaskalson, Lawyers' Committee for Civil Rights Under Law
Washington, DC, United States
Undated; most likely September or October 1991
Publisher: Lawyers' Committee for Civil Rights Under Law
4 pages
Type: Report
Coverage in Africa: Namibia
Coverage outside Africa: United States
Language: English
The report says on September 6th, South African President F.W. de Klerk made public the proposals of the National Party for a new post-apartheid constitutional structure for South Africa; while it is technically a party document, it is nevertheless legitimately viewed as the first detailed picture of government thinking on the topic; the following analysis of those proposals was written by Arthur Chaskalson, Senior Counsel at the Bar in South Africa and National Director of the Legal Resources Centre of South Africa; he participated in the drafting of the constitution of the new nation of Namibia and is actively engaged in the national debate about South Africa’s future constitutional order. The report says the constitutional proposals of the National Party must be seen in the context of South African history; this history has been one of white domination and black disempowerment; white controlled governments have pursued policies of segregation and discrimination regarding the ownership and occupation of land, education and the provision of social services; until comparatively recently labor policies were directed towards excluding blacks from skilled occupations and forcing them into a system of migrant labor; the legacy of this system is still with us; significant numbers of black workers continue to be migrants and the great majority of black workers are unskilled; over 80% of the land is still owned by whites who control the economy and, still, control the political process. The report says to free South Africa from apartheid more will be required than the repeal of race legislation; the legacy of apartheid must also be addressed; peace, progress and prosperity will only be possible if those who have been the victims of apartheid are able to see that the new society differs materially from the old, and that a genuine attempt is being made to meet their basic needs for jobs, shelter, nutrition, health and education. The report says at the Executive level the proposals call for a "Presidency" consisting of the leaders of the three largest parties, or up to five, if the three largest parties do not command 50% of the votes; the "Presidency" is required to function under a rotating" chairmanship" and to take its decisions by consensus. The report says although provision is made for a legislative assembly to be elected by proportional representation, a bicameral system is proposed, in which a second house is required to give its approval to Bills passed by the legislative assembly; the second house is to be elected on the basis of regional representation, but in each region any party polling more than a minimum percentage of the regional vote, will be allocated the same number of seats; the minimum percentage is not stated, but whatever it may be, it will put all parties who pass the minimum point on an equal basis, irrespective of the votes that they actually receive; this not only favors minority parties over the majority party, but also encourages the fragmentation of political formations so as to achieve the maximum advantage from the disproportionate allocation of seats. The report says regional legislatures are to function on the basis that there will be "decision making procedures (to) provide or the protection of minority interests and certain circumscribed matters." The report says the "minority interests" and "circumscribed matters" are not defined, nor are the "special procedures" according to which decisions are to be made; it is proposed that the regional legislatures be constituted by votes on a proportional representation system, but in addition, that there should be indirect nomination of members by local authorities. The report says local government is co be vested in city councils co be elected on a basis which has regard both to the interests of "lawful residents" and the particular interests of "owners, lessees and rate payers". The report says central, regional and local government is to take place within a system of devolution of power which will prevent any of the three tiers of government functioning in areas allocated to the other tiers of government. The report says in its publication "Constitutional Rule in a Participatory Democracy" the National Party acknowledges that the new dispensation should be free from apartheid and discrimination in any form, and should be based on universal franchise in a democratic structure of government; the structure that it puts forward to achieve these goals is, however, neither democratic nor likely to free South Africa from the legacy of apartheid. The report discuses white privilege, Transkei, Bophuthatswana, Venda, Ciskei, informal settlement, constitutional structures, government by consensus, legislative proposals, multi-party consensus, formal houses, informal houses, granting of licenses/permits, communal facilities, security matters, civil protection, neighborhood groups, a bill of rights, domination, and majority rule.
Used by permission of Lawyers' Committee for Civil Rights Under Law.
Collection: George M. Houser (Africa collection), Michigan State University Libraries Special Collections