Constitutional Design

Democratic Constitution in South Africa

Apartheid

Apartheid is a system of racial discrimination unique to South Africa imposed by the white Europeans. During the seventeenth and eighteenth centuries, the trading companies from Europe occupied it with arms and force and became the local rulers. The system of apartheid divided the people and labelled them on the basis of their skin colour. The white rulers treated all nonwhites as inferiors. The non-whites did not have voting rights and were forbidden from living in white areas. The blacks, coloured and Indians fought against the apartheid system, from 1950. The African National Congress (ANC) was the umbrella organisation that led the struggle against the policies of segregation. Nelson Mandela was one of the leaders amongst the eight who were tried for treason by the white South African government. They were sentenced to life, imprisonment in 1964 for daring to oppose the apartheid regime in the country.

Giving Rise to New Constitution

As the protests and struggles against apartheid increased, the blacks could no longer be kept under the rule of the government through repression. The white regime changed its policies. Discriminatory laws were repealed. Ban on political parties and restrictions on the media were lifted. Nelson Mandela was released after 28 years in the Robben Island Prison. The apartheid government came to an end on the midnight of 26 April 1994, paving way for the formation of a multi-racial government.

Following the emergence of the new democratic South Africa, the party that ruled through oppression and brutal killings and the party that led the freedom struggle sat together to draw up a common constitution. This constitution gave to its citizens the most extensive rights available in any country. Together, they decided that in the search for a solution to the problems, nobody should be excluded.

Why the Need for Constitution?

Take the example of South Africa to see why we need the constitution and what constitutions do. The oppressor and oppressed were planning to live together as equals in the new democracy. Each section wanted to safeguard their interests and wanted substantial social and economic rights. Through negotiations, both parties came to a compromise. The whites agreed to the principle of majority rule and that of one person one vote. They also agreed to accept some basic rights for the poor and the workers. The blacks agreed that majority rule would not be absolute and that the majority would not take away the property of the white minority. How was this compromise to be implemented? The only way to build and maintain trust in such a situation was to write down some rules of the game that everyone would abide by. These supreme rules that no government would be able to ignore are called a constitution.

Every country has diverse groups of people. All over the world people have differences of opinion and interests. The constitution is the supreme law that determines the relationship among people living in a territory (called citizens) and also the relationship between the people and government. Find what constitutions do below:

• First, it generates a degree of trust and coordination that is necessary for different kind of people to live together
• Second, it specifies how the government will be constituted, who will have the power to take which decisions
• Third, it lays down limits on the powers of the government and tells us what the rights of the citizens are
• Fourth, it expresses the aspirations of the people about creating a good society

All countries that have constitutions are not necessarily democratic. But all countries that are democratic will have constitutions.

Making of the Indian Constitution

India’s Constitution was drawn up under very difficult circumstances. The country was born through a partition on the basis of religious differences and was a traumatic experience for the people of India and Pakistan. The British had left it to the rulers of the princely states to decide whether they wanted to merge with India or with Pakistan or remain independent. The merger of these princely states was a difficult and uncertain task. When the constitution was being written, the future of the country did not look as secure as it does today.

The Path to the Constitution

One of the major advantages for the makers of the Indian Constitution was that consensus about what a democratic India should look like had already evolved during the freedom struggle. In 1928, Motilal Nehru and eight other Congress leaders drafted a constitution for India and In 1931, the resolution at the Karachi session of the Indian National Congress dwelt on how independent India’s constitution should look like. Both these documents included features such as Universal Adult Franchise, Right to Freedom and Equality and to protecting the rights of minorities in the constitution of independent India. These basic values were accepted by all leaders much before the Constituent Assembly met to deliberate on the Constitution. That is why the Indian constitution adopted many institutional details and procedures from colonial laws like the Government of India Act, 1935. Many of our leaders were inspired by the ideals of the French Revolution, the practice of parliamentary democracy in Britain and the Bill of Rights in the US.