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Foreword (by Desmond Tutu)

Walk-through of the exhibition


The Birth of the Bill of Rights

The final South African Bill of Rights was born out of the long struggle against apartheid and injustice. Until the first democratic election on 27 April 1994 the vast majority of South Africans had been excluded from participating in government, and subjected to a wide variety of gross human rights violations.

It is ironic that when the National Party came to power on an apartheid ticket on 28 May 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) on the 10th December that same year. South Africa was one of only eight countries that abstained from voting, in part because the Government was already laying the foundation for implementing an apartheid programme which would systematically violate every one of the rights recognized in the UDHR.

Attempts to oppose the implementation of apartheid by political organisations representing the majority of South Africans, such as the ANC, SACP and PAC, were met with banning, persecution and imprisonment of their members and leaders. Eventually the organisations themselves were banned and forced to go underground to wage a war of national liberation. This suppression of human rights and legitimate political activity by the State would never have been possible if South Africa had been a Constitutional democracy with a Bill of Rights which allowed a Constitutional Court to declare such oppressive laws unconstitutional.

As repression increased, and the struggle against apartheid intensified, South Africa stood on the brink of a bloodbath. Fortunately Nelson Mandela, while still in prison, initiated discussion with the National Party government which eventually led to FW De Klerk announcing the unbanning of the ANC, SACP and PAC in Parliament on 2 February 1990, and the release of Mandela himself on 11 February 1990. The stage was finally set for a negotiated settlement after the signing of the Groote Schuur Minute on 5 May 1990.

South Africa's first, interim Constitution and Bill of Rights was the result of initial discussions at the Convention for a Democratic South Africa (CODESA) and, after its collapse, the negotiations of the Multi-party Negotiating Forum which were completed at the end of 1993. The interim Constitution was finally agreed upon and passed by the old Parliament as the Constitution of the Republic of South Africa 200 of 1993 with a Bill of Rights enshrined in Chapter 3.

The interim Constitution provided that an elected constitutional Assembly had to, within two years and after wide consultation, draft a final Constitution and Bill of Rights within the guidelines set out in the Constitutional Principles agreed upon during the negotiations. The Constitutional Assembly immediately engaged in a massive publicity campaign to encourage ordinary members of the public to submit ideas on the new Constitution. More than 2 million submissions were received.

Once the new Constitution was drafted it had to be certified by the Constitutional Court to ensure that it complied with the constitutional Principles, before it could be passed as law by Parliament. Certain sections of the proposed new Constitution were referred back to the Constitutional Assembly by the Court for re-drafting, but by and large the provisions of the draft Bill of Rights remained intact.

Professor David McQuoid-Mason
Chairperson Durban Regional Committee
Lawyers for Human Rights