#HistoryinPublications

From 1990 to 1994, the Community Law Centre (now: Dullah Omar Institute) focused its work on shaping a democratic South Africa. Under the leadership of Adv Dullah Omar, the Centre directly influenced the constitutional negotiations with academic research.

The Centre produced many papers, drafted by some of the African National Congress' key negotiators, on topics related to the quest for a constitutional democracy. Some of the papers can be downloaded below.

 

Western Constitutionalism and African Political Culture
Author: Albie Sachs
Published: Feb 07, 1996

This essay celebrates the life and impact of Dr Jack Simons, who taught African Law and Administration at the University of Cape Town from 1937 to 1964. Albie Sachs discusses Dr Simons’ influential work on the relationship between the governors and the governed in colonial Africa, the suppression of African law and Dr Simon’s role in setting up the ANC's Constitutional Committee to conceptualise the constitutional foundations for a democratic South Africa. Albie Sachs worked at the Community Law Centre from 1990 until 1994 when President Nelson Mandela appointed him to South Africa’s Constitutional Court.

Language Rights in the New Constitution
Author: Albie Sachs
Published: Jun 01, 1994

This paper is one of the first to address the emotive issue of language in South Africa. It discusses key concepts related to language issues and then examines South Africa's move, in the 1993 Constitution, from bilingualism (English and Afrikaans) to multilingualism (eleven official languages). Albie Sachs draws an important distinction between language rights, language policy and language practice. Finally, the paper contains a commentary on the constitutional provisions relating to language, discussing matters such as regional differentiation, the practicability of multilingualism and the role of the Pan South African Language Board.

Custom and Religion in a Non-racial Non-sexist South Africa
Author: Community Law Centre (ed)
Published: Feb 03, 1994

An edited volume of chapters emanating from a Conference convened by the Community Law Centre on 14-16 May 1993 on "Custom and Religion in a Non-racial, Non-sexist South Africa". The book is dedicated to Amy Biehl who wrote the executive summary. In her chapter, Brigitte Mabandla warns how a conservative lobby uses custom, religion but also regional autonomy to pursue a conservative agenda. Thandabantu Nhlapo writes about ‘dignity’ as a central concept to acknowledging traditional values. Sbongile Nene writes about how custom and religion contribute to disadvantages for black women. Beauty Mkhize focuses on rural women and Yvonne Mokgoro (who went on to become Constitutional Court judge) writes about the impact of customary law on rural women, David Malatsi sets out the position of the Congress of Traditional Leaders. Prof H Simons discusses how patriarchy and apartheid are used against women under the guise of custom and religion.

Structures for Women in Political Decision Making
Author: Amy Biel
Published: Mar 01, 1993

This document, penned by Amy Biehl, articulates women's demands with respect to participation in political decision making in a future South Africa. It examines the comparative experiences in designing and implementing structures to promote increased women participation. She thus discusses various options to increase women participation, such as constitutional mechanisms, electoral rules, a women's ministry, political party structures etc. Amy Biehl was a Fulbright Student Intern at the Community Law Centre. A few months after writing this paper, Amy was tragically killed by a mob of youth in Gugulethu while driving three co-workers home.

Religion, Education and Constitutional Law
Author: Albie Sachs
Published: Nov 07, 1992

This paper outlines the basic principles concerning the relationship between religion and the state, the role of religious bodies and the vexed issue of religious education in schools. It is a transcription of a lecture, delivered by Albie Sachs at the Institute for Comparative Religion in Southern Africa (UCT) in November 1992. It starts with a fascinating anecdote about how the format of CODESA was adapted to, for the first time accommodate multiple religions and how discomforting this was for the National Party government.

A Children's Rights Research and Advocacy Project Discussion Paper
Author: Brigitte Mabandla et al
Published: Jul 01, 1992

This collection of essays is located in the reality that, in the words of Dullah Omar's preface, "children have assumed positions, that would be unbearable even by their elders, in prisons, courtrooms and workplaces". It discusses discrimination against children, violence against children, the position of children with disabilities and the earliest proposals for reforms to juvenile justice. It contains contributions by Dullah Omar, Brigitte Mabandla, Michelle Morris, Colleen Howell and Vuyo Mahlati.

Chieftancy, the Ethnic Question and the Democratisation Process in South Africa
Author: Zola Skweyiya
Published: Jul 01, 1992

This paper examines the institution of traditional leadership in South Africa. It details the abuse of chieftaincy as an instrument in exploitation in Africa and focuses on how chieftaincy played an crucial part in implementing the bantustan policy. Zola Skweyiya warns, though, against being blind and insensitive to the influence and authority of traditional leaders in South Africa. He discusses chieftaincy and local government and ultimately asks the question as to whether traditional leadership can be "moulded to entrench, stabilise and legitimise democracy, especially at local level". Zola Skweyiya went on to become a Minister of Public Administration (1994 - 1999), Minister of Social Development (1999-2009) and High Commissioner to Great Britain.

Affirmative action and black advancement in business
Author: Albie Sachs
Published: Jun 11, 1992

In this paper, written in 1992, Albie Sachs sketches the grossly uneven patterns of ownership and opportunity in business, created by apartheid. It includes an anecdote of the humiliation inflicted on Ismail Mahomed, who was to become Chief Justice, when he argued his first case in the Appellate Division. Albie Sachs discusses Nationalisation, Africanisation and quotas in business. He argues pointedly: “[I]t is not that we wish to Africanise the economy, we wish to South Africanise it”. He maintains strongly that non-racialism may not become the instrument for protecting racial advantage. He then proceeds to discusses the proposal made by the National African Federated Chamber of Commerce (NAFCOC) to demand the "3, 4, 5, 6..." targets for representation, equity, supply and management of JSE-listed companies. He concludes with suggesting seven criteria to govern the application of affirmative action. This paper was published under the auspices of the SA Constitution Study Centre, which was based at the Community Law Centre.

Community Voices on Policing in Transition
Author: Clifford Shearing and Mzwai Mzamane
Published: Jun 01, 1992

This paper deals with the transformation of the South African Police Services (SAPS) during the transition to democracy. It presents the views of 45 people who all had been involved in the struggle for democracy and were affected by the actions of SAPS. They were interviewed to give their views on the role of SAPS in the democratisation of South Africa and to canvass suggestions for the reform of the South African Police Services during the transitional period. The respondents saw SAPS as a central pillar of apartheid, fundamentally racist and created to maintain law and order in an oppressive state. It was not going to be easy to put it to the service to dismantle apartheid. However, the respondents offered many suggestions. Embedding SAPS in a legitimate state was a precondition but other suggestions were, such as offering extensive training for SAPS officers, reducing the power of independent police units, ensuring independent oversight, bringing in greater community liaison and many more.

Increased Awareness by Women of their Rights
Author: Bridgitte Mabandla
Published: May 01, 1992

The paper examines the promotion of women's rights and is located in the context of the ongoing negotiations in CODESA. Brigitte Mabandla focuses on the lack of awareness of women's rights. She discusses various features of the women's movement in South Africa as well as the challenges of engaging urban and rural women's groups on rights issues. She discusses the campaign for a women's charter including the question as to whether it should be part of the Bill of Rights.

Seeking Justice for the Children of South Africa
Author: Michelle Morris (ed)
Published: Mar 01, 1992

The preface for the book is written by Dullah Omar. He introduces the Centre's Children's Rights Project as a project that promotes the rights of children who suffered and still suffer as result of apartheid. The book contains a comprehensive overview of the abuses suffered by youth at risk or in trouble with the law at the hands of a cruel criminal justice system. Furthermore, it makes important recommendations for a more rights-based approach to dealing with children in conflict with the law. The various chapters, put together with the help of UWC Law students, discusses the powers of the police, pretrial detention, recommendations for diversion, children in court, legal representation for children, alternatives to punishment and rebuilding family life.

Rooting Democracy on African Soil
Author: Zola Skweyiya
Published: Mar 01, 1992

Zola Skweyiya presents a comprehensive vision for a future South Africa, broken down in sections dealing with African independence, the legacy of colonialism, the crisis of legitimacy in the South African political system. He also discusses the role of the state in development and critiques the economic policies of the De Klerk government. He advocates for higher levels of participation in the economy and proposes a "social system which consciously limits the gross disparities in income and wealth" . He warns against ignoring ethnicity in the quest towards national unity and reflects on the role of civil society in democratisation. Finally he presents proposals for post-apartheid constitution based on key values such as constitutionalism, women rights and separation of powers. Zola Skweyiya went on to become a Minister of Public Administration (1994 - 1999), Minister of Social Development (1999-2009) and High Commissioner to Great Britain.

Does a New South Africa Need Regions?
Author: Bantu Holomisa
Published: Mar 01, 1992

The future structure of the South African state was a major negotiation point during CODESA. Bantu Holomisa discusses the advantages and disadvantages of unitary and federal options for South Africa. He favours a unitary system that uses regions as an administrative structure and warns against experimenting with a system of federalism "which has not succeeded anywhere in Africa". He warns against regionalism based on ethnic division and favours objective criteria for the delineation of regional boundaries. At the time, Bantu Holomisa was the Head of the Transkei Government. He went on to become a Member of Parliament and co-founder and President of the United Democratic Movement (UDM).

Constitutional Structures: Fundamental Differences Between the Proposals of the South African Government and the African National Congress
Author: Arthur Chaskalson
Published: Mar 01, 1992

Arthur Chaskalson compares various proposals made by the National Party government and the ANC during the negotiations towards the 1993 Constitution. He discusses government's proposals with respect to constitutional structures such as Parliament and the Presidency. He reflects on the bicameral system, presidential executive systems and parliamentary executive systems as options for a future South Africa. At the time, Arthur Chaskalson was Direction of the Legal Resources Centre and member of the ANC Constitutional Committee. He went on to become a Constitutional Court Judge and Chief Justice.

The situation of women in a changing South Africa
Author: Brigitte Mabandla
Published: Nov 23, 1991

In this paper, delivered to the United Nation’s Centre for the Development and Advancement of Women in Geneva, Brigitte Mabandla provides an overview of the state of women’s rights in South Africa in 1991. She explains how women are organised and discusses the launch of the ANC Women’s League and other organisations promoting women’s rights. She also explains how the ANC underwent a change internally, coming to terms with understanding race, class and gender struggles. She discusses the role of Universities (the University of the Western Cape in particular) in conceptualising gender oppression. Finally, she provides an overview of those provisions in the ANC's draft Bill of Rights (1991) that protect women’s rights, ranging from equal rights, affirmative action and the ‘right to a home’.

The Future Constitutional Position of White South Africans: Some Further Ideas
Author: Albie Sachs
Published: Jan 18, 1990

A paper, written by Albie Sachs under the auspices of the South Africa Constitutional Studies Centre in London, shortly before he joined the Community Law Centre. He discusses the emotive issue of the future position of White South Africans in a democratic South Africa. 'Freedom', he argues, means to be permitted to do what was formerly unjustly forbidden. He discusses how the new Constitution of South Africa has to be for all South Africans, former oppressors and oppressed alike.

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