Court rejects draft S African constitution

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The Independent Online
South Africa's proposed new constitution, two years in the drafting, was rejected yesterday by 11 senior judges, who ruled that the powers it would allocate to provinces had been watered down.

In what is as much a tussle for political power as the formulation of a constitutional framework for the new South Africa, the Constitutional Court ruling partly vindicates Chief Mangosuthu Buthelezi's Inkatha Freedom Party, which walked out of constitutional talks last year claiming that provinces - including its political stronghold of KwaZulu Natal - would not be given enough autonomy.

But the IFP's victory was tempered by the court's decision yesterday also to reject KwaZulu Natal's proposed provincial constitution. The judges were severely critical of it, arguing that one clause, requiring all citizens to defend the province, sounded like the legitimisation of armed secession from South Africa.

The court questioned a request for powers to declare a state of emergency, asking why, if this was simply intended to be used in the event of a natural disaster. Powers of detention were also proposed.

Yesterday's judgment concluded that the KwaZulu Natal constitution attempted to "usurp the powers of the national government".

But the judges ruled that the provincial powers proposed by the national constitution were "substantially less" than those guaranteed in the country's interim constitution, drawn up as part of the political horse trading between the parties in 1993, during South Africa's negotiated transfer of power.

The interim constitution set out 34 immutable principles upon which the final constitution was to be based. It has been the judges' task to interpret the often ambiguous principles and decide whether the proposed final constitution meets them. The new constitution, described by some as the final leg in the journey to democracy, will now return to the Constitutional Assembly. It has three months to come up with modifications which will meet with the Constitutional Court's approval.

The IFP was not alone in objecting to the centralisation of political power. The National Party's opposition was influenced by its strong provincial base in the Western Cape. The Democratic Party, which has no regional powerbase, argued that weak provincial powers allowed central government to operate without adequate checks and balances.

The joint political opposition and the court ruling mean that the governing African National Congress will have to make yet another compromise.

President Nelson Mandela yesterday welcomed the court ruling that the assembly's proposals were basically sound and that its objections on provincial powers and other contentious areas such as labour relations could be easily satisfied.

The ruling allows the IFP a face-saving way back into the constitutional talks. Unless it decides then to challenge other clauses, MPs believe that the target of having a new constitution in place by the beginning of next year can still be met.

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