OPINION: Crafting a new SA, an extract from 'My Own Liberator – A Memoir'

By Dikgang Moseneke

From January 1993, I looked inward and put my head down. I resolved to pursue the enterprise of a practising advocate with rigour.

Soon, I gave the Bar Council notice that I sought to assume silk status. In those days, I was obliged to give notice of my intention to apply for silk to every other advocate who was my senior at the Bar. None of my seniors objected.

Pound for pound, I had prosecuted a vigorous, diverse and complex practice at the Bar, despite the apartheid margins.

I had litigated against or side by side with most of my peers for over a decade, after a five-year stint as a partner in an attorneys’ law firm. Add three years of apprenticeship as a candidate attorney and I had a solid 18 years of exposure to legal practice. I had fearlessly presented cases of vulnerable individuals and communities, as well as of political activists of the widest variety.

Whatever limited business law cases emerged from black businesses, I was briefed in most. I had appeared in all courts of the land, including the Appellate Division. I was ready for a new phase in my career.

Members of the Bar Council conducted a peer review of sorts to satisfy themselves of my suitability to earn senior counsel status. They supported my silk application and forwarded it to Judge President Frikkie Eloff.

In turn, the judge president was obliged to assess the forensic skills and experience of counsel who craved silk status. He gave me the nod and soon I had letters patent appointing me senior counsel of the republic, signed by Kobie Coetsee, the minister of justice, and FW de Klerk, the state president.

It was then that the irony of my appointment as silk hit me. A state that I fought and sought to destroy with every sinew of my being had conferred on me the treasured professional status of silk. The security killer-squad of the same state had conspired to murder me at least twice, as TRC records would later reveal.

The paradox did not end there. I was a senior counsel without a vote. I remained subject to the horror of the state’s racial antipathy and economic exclusion.

There was a saving grace, however. When I took silk, the regime had begun to totter and was on a route of forced penitence. It was poised to agree to the demise of its unwelcome rule.

Two vital developments occurred at the multi-party talks. In June 1993, the parties agreed to hold national and provincial elections on April 27 1994. Shortly thereafter, in July 1993, a ground-breaking compromise was struck. There would be an interim constitution. Under it the minority government would end and elections would be held. The resultant parliament, at times, would sit as a constituent assembly that would draft and adopt a final constitution. That compromise would give legitimacy to the constitution as a progeny of “we the people”.

One afternoon, my telephone rang. It was Thabo Mbeki , enquiring whether I would serve on the technical committee tasked with drafting the interim constitution. If I were so minded, he said, I should call Arthur Chaskalson SC, who would furnish me with the mandate of the drafting committee.

I was quietly excited, but careful not to imperil my resolve to preserve my law practice and to stay outside of the political space. In my mind, there is a firm line between a freedom fighter and a politician. The former is the bearer of revolutionary and moral idealism. The latter, barring a few notable exceptions, vends the possible and expedient.

Often the expedience degenerates to power and not service, to self-interest and not public good.

Happily, the mandate of the technical committee was neutral. Its members were nominated by negotiating parties but approved by the assembly of all parties for which the technical committee worked.

It was co-chaired by Francois Venter, a professor of constitutional law from Potchefstroom University, and Arthur Chaskalson. Its members included Bernard Ngoepe, a member of the Pretoria Bar, who in time became the judge president of the Gauteng High Court; Firoz Cachalia, an attorney and activist; and George Devenish, a professor of constitutional law at the University of Natal.

We were expected to work full-time on the task and well beyond the call of duty. The technical committee’s relationship with the multi-party negotiation forum was one of agency. The committee worked for the collective of the parties in the plenary assembly.

Its primary task was to convert the political consensus of the negotiating chamber into a constitutional text. Every draft, usually in the form of a chapter or discrete clauses, was first circulated to all the parties and thereafter debated in an open plenary assembly.

The technical committee remained in attendance in the assembly during the debates on its drafts. We made amendments agreed to by the assembly. When the drafting committee could not agree on a text to place before the assembly, we produced more than one text reflecting the divergent drafts. The assembly would choose the one it preferred or ask the committee to revise its proposed drafts.

By and large, the drafts of the technical committee were highly regarded and altered only marginally. In some instances, the assembly would request a constitutional law opinion from the technical committee on a discrete issue. I worked closely with Arthur on the research.

The plenary assembly agreed on most provisions of the draft interim constitution. But there were hefty differences. The most raucous divergence was whether the envisaged republic would be a federal or unitary state.

Parties from the left were anxious to establish a competent unitary state capable of effective transformation.

The National Party, former homeland entities and others on the right pushed for a loose and decentralised federation in which the provinces held the bulk of the executive and legislative competencies, while national centre held limited and defined residual power. The compromise to this trenchant contest between federalism and unitarism was to split the difference by formulating complicated schedules of exclusive and concurrent national and provincial competencies. The schedules resurfaced in the final constitution.

Another sore point was the character of the final constitution after a majoritarian election.

Once the National Party and other like-minded parties had conceded a two-stage constitution-making process, their concern was to agree with the minimum principles that would gird the final version of the constitution. They insisted that the new Constitutional Court must certify whether the final constitution was in harmony with the pre-set constitutional principles.

That compromise set up a delicate balance between outright majoritarianism in constitution crafting and the anxiety of minorities about the character of the final text.

Agreeing on the wording and reach of the constitutional principles was trying. Our drafts were scrutinised finely. Proposed changes in the wording of our draft constitutional principles were many and indicative of the core differences and concerns of the parties from left to right along the political scale.

Parties that were likely to be electoral minorities preferred ample constitutional principles that were worded to constrain the exercise of public power.

The bill of rights chapter did not stoke up as much difference as one would have expected. Surprisingly, except for the right to basic education, there was no big push for the inclusion of socioeconomic rights as properly justiciable. Thankfully, justiciable socioeconomic rights were inserted in the final constitution. No constitutional principle in the interim constitution outlawed socioeconomic guarantees.

Also, those parties opposed to the inclusion of socioeconomic protections had no proper answer to the proposition that the social devastation of apartheid called for a state-led “Marshall Plan”. In the end, the inclusion may not have mattered much, because the burden of reconstruction and development fell squarely on the new democratic government.

The property clause in the interim constitution was perhaps the biggest give the liberation movement had to tolerate to go over the democratic winning line.

The first part of the property clause in the interim constitution seemed to concern itself with future acquisition and disposal of property. It promised everyone the right to acquire and hold rights in property or dispose of it. Its thrust was clearly futuristic.

Historical rights in property that had vested were protected by the assurance that “no deprivation of any rights in property shall be permitted otherwise than in accordance with a law”.

The property clause recognised that certain laws may regulate, limit or deprive the use or enjoyment of property.

Also, the state may expropriate a right in property in accordance with a law, provided it is for a public purpose only. Expropriation must be against payment of compensation agreed to with the affected person or determined by a court. The property clause, in effect, sanitised historical dispossession and entrenched proprietary benefit and privilege of an unequal past.

Perhaps the stickiest part of the interim constitution came right at the end of the negotiations and drafting process. It related to truth and reconciliation.

We came to learn that the securocrats in the police and army would not support the transition unless two matters had been resolved: a constitutionally sanctioned process of amnesty for past crimes that were politically inspired, and pensions.

At that point the formal task of the technical committee had come to an end. I was more than happy to be relieved of the task of formulating a constitutional text that would address a matter so complex.

The post-amble of the interim constitution was the outcome of that intractable debate. It sought to find a balance between the truth and retribution, on the one end, and forgiveness and reconciliation, on the other.

The upshots of the twin debate were the TRC and sunset clauses that were dressed up as obvious deal-makers without which the transition would stall. Arthur and Francois were seized with that intractable final stage.

The final draft of the interim constitution was completed and adopted by parliament by the end of 1993 and assented to on January 23 1994. But it only took effect on April 27 1994.

Dikgang Moseneke retired as Deputy Chief Justice in May. My Own Liberator – A Memoir (Picador Africa) is available at bookstores nationwide or on orders@e-booksite.co.za