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How Countries Constitute ThemselvesLesson 15 of 19

15 · The negotiated transition: South Africa, 1993 and 1996

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The second case is the model of the negotiated transition: not a convention of allies drafting a fresh start, and not a text handed down by a victor, but old rulers and rising opponents bargaining a new order together, because neither side could simply impose one. South Africa's move out of apartheid is the clearest modern example, and it added an innovation no other country had tried.

The problem: how do enemies write one constitution?

By the early 1990s apartheid was ending, but the transition faced a trust problem. The governing National Party feared that a democratic majority would write a constitution to crush the old minority; the African National Congress and its allies feared that leaving the old government in charge of the process would entrench white power under a new name. Neither side trusted the other to hold the pen. The answer was a two-stage design that let them proceed without either side having to trust the other's good faith.

Stage one: an interim constitution and 34 principles

Multiparty negotiations produced an interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993), which took effect for the first democratic elections in April 1994 that brought Nelson Mandela's government to power. But the interim constitution did something unusual: it did not settle the final text. Instead it fixed 34 Constitutional Principles that the eventual final constitution would HAVE to satisfy, covering democracy, rights, the rule of law, and the basic shape of the state (Constitution of the Republic of South Africa Act 200 of 1993).

This is the negotiated-transition innovation. The parties could not agree on every detail of a final constitution up front, so they agreed instead on the PRINCIPLES the final document must honor, and then let a democratically elected body write the details, bound by those principles. They locked in the guardrails before they knew who would win.

Stage two: an elected assembly, and a court that had to certify

The 1994 elections produced a Constitutional Assembly, which drafted the final constitution. Then came the step that is genuinely unique in constitutional history. The final text could not simply take effect; the Constitutional Court had to CERTIFY that it actually complied with all 34 agreed principles. A court, not a vote, held the last gate.

And the court used it. In its first certification judgment, delivered on 6 September 1996, the Constitutional Court DECLINED to certify the text, holding that several provisions failed to comply with the Constitutional Principles (Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26). The Constitutional Assembly amended the text to fix the defects, and the Court certified the amended text in December 1996. The final Constitution of the Republic of South Africa, 1996 then took effect on 4 February 1997 (Constitution of the Republic of South Africa, 1996).

What the negotiated route teaches

A negotiated transition substitutes agreed principles and an impartial umpire for the trust that adversaries do not have. The 34 principles were the pre-agreed guardrails; the Constitutional Court was the umpire that enforced them, and its willingness to refuse certification the first time proved the umpire was real rather than a rubber stamp. The system South Africa built is parliamentary (the President is elected by and accountable to the National Assembly) with a powerful constitutional court and an entrenched bill of rights, a design shaped by the very fear of majority power that made the negotiation necessary. Where the US convention route went draft-then-ratify, South Africa went negotiate-principles, elect-an-assembly, draft, then certify. This is historical and structural description, not legal advice.

Sources

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