To enable public participation, the parties swiftly agreed a three-phase work programme that included a first phase of activities to elicit issues to be considered in preparing a draft, followed by a second phase where the public would be invited to comment on the draft text, and a third phase when the Constitutional Assembly would finalise and adopt the new Constitution.
The first phase started in December 1994. A Media Department was immediately established to initiate print, radio and television programmes about the work of the Assembly, as well as a national advertising campaign. Much of the messaging was based on the slogan 'You've made your mark, now have your say'. Agencies were commissioned to conduct a survey to assess the penetration of the campaign after three months, which revealed areas in need of further attention and resulted in a Constitutional Education Programme.
Once the negotiators in the theme committees reached agreement on the areas to be covered, they placed advertisements in major newspapers inviting submissions and organised workshops and consultations with affected sectors to elicit views. Every South African was invited to share their thoughts by sending written submissions, making oral statements at a public meeting, phoning the Constitutional Assembly talk line, or using the internet. Through a face-to-face outreach programme, the Assembly, assisted by local civil society organisations, targeted communities that would find it difficult to access information through print or electronic media – particularly in remote areas or communities with low literacy rates. For many of these, it was the first time they were able to interact directly with their elected representatives. It elicited nearly 1.7 million submissions – most of which were in the form of signatures on petitions – and more than a thousand workshops, briefings and meetings reaching approximately 95,000 people.
The submissions were collated into reports, noting the convergence of ideas and agreements as well as contentious issues and ideas for addressing them. The submissions soon generated a long list of new issues, sparking an important debate over which issues should be addressed in the constitution and which should be addressed through ordinary legislation. This dilemma was partially addressed by the panel of constitutional experts, which drafted criteria for considering the issues for inclusion. Of the 13,443 written submissions – ranging in size from a few handwritten lines to printed reports over a 100 pages long – about 10 per cent were from organisations, about 0.6 per cent from political parties, and the vast majority from individuals. Yet a disproportionate share of the submissions were from the well-educated, the middle class, and professionals, academics and political activists. This posed dilemmas about whether the submissions should be regarded as representative and the weight they should be given in the context of negotiations between democratically elected parties. In a country with such enormous disparities in education and access to information and other resources, issues of representativity were at the forefront of concern.(2)
In the first phase, responses were copied and sorted by the secretariat and then forwarded to the experts in the relevant technical committees. They collated the subjects and prepared summary reports for consideration by their theme committees. Yet the vast quantity of input created a major challenge in information management – particularly for Theme Committee 4, charged with addressing the rights issues that were the main subject of the submissions. It seems that the submissions from organisations with links to parties or with specialised knowledge of the issues were given serious consideration. Submissions from individual citizens were not utilised systematically by the drafters in the first phase, in part because of the sheer volume of material and in part because some issues were seemingly unrelated to the negotiating agenda.
In the second phase of consultation, during December 1995 and January 1996, over four million copies of the working draft constitution were distributed in the second phase of consultation, along with explanatory articles and graphics. The draft attracted about 250,000 submissions that were more focused and better processed. They were summarised and linked to specific articles in the constitution, making them more accessible to representatives negotiating a revised draft, thus increasing the probability they would be considered.
The Constitutional Assembly deliberations were open to the public and well covered by journalists. But in the late stages of negotiations, when time was running out and agreement still elusive, the parties held frequent bilateral and multilateral meetings in private. This move was criticised by some civic organisations and the media particularly objected to the closure of multilateral meetings. Yet privacy enabled the negotiators to make concessions without being revealed in the media as betrayed their constituencies; privacy also reduced the temptation to publicly score points in the ongoing debate – an experience that revealed some of the tensions between the needs of principled negotiations versus those of constituency politicking.
The Assembly was concerned to create an awareness that would help make the new Constitution a reference point for all South Africans on the foundation of their democracy. It disseminated 7 million copies of the final document in all 11 official languages, accompanied by an illustrated popular version. There were few opportunities for formal debate between the Assembly and the public, yet there was significant informal discussion among South Africans, both in public and in private. Surveys indicated that a quarter of all adults had discussed the Constitutional Assembly and related issues with friends or family. The constitutional debate and the previous negotiations helped to legitimise and underscore the importance of democratic processes as the way to address political conflict. CASE's survey also indicated that the public participation initiatives helped to create a strong sense of ownership of the Constitution among the public, the majority of whom felt they had an opportunity to contribute its creation – despite some lingering scepticism amongst those who perceived they had the most to lose in the new system.
(2) For further analysis, see as Siri Gloppen South Africa: the Battle over the Constitution (Aldershot, UK: Dartmouth Publishing Company, Ltd. 1997)