Government and Elections in South Africa

This publication was originally written for Shared Interest, a U.S. NGO that serves as a catalyst for change in South Africa by providing access to credit for black people otherwise considered "unbankable." Since 1994, this social investment fund has helped create more than 12,000 small businesses, 18,000 jobs and 64,000 low-cost homes – benefiting 400,000 South Africans, 75 percent of them women. This paper presents the policy debate and background to the elections as the country seeks to meet the Millennium Development Goals including halving extreme poverty to halting the spread of HIV/AIDS.

A Decade of Democracy:

By Richard Knight, March 19, 2004

South Africa’s third democratic elections are scheduled for April 14. Elections will be held for Parliament and the nine provincial legislatures. The current Constitution, which took effect in February 1997, provides the structure of government including a national Parliament, nine provincial legislatures and local government. The three levels of government are interdependent and share responsibilities such as provision of services. The Constitution also provides for a series of fundamental rights. There is an independent judiciary including a Constitutional Court. Other bodies such as the South African Human Rights Commission and the Independent Electoral Commission help ensure human rights and democracy.

Government

Parliament

Parliament, which is the legislative authority, has two houses, the National Assembly and the National Council of the Provinces (NCOP). The life of Parliament is five years.

Women in the

National Assembly - 2003

· Of the 400 members of the National Assembly, 122 are women – over 30%

· ANC has 275 seats in the National Assembly, 36% of who are women

· The Democratic Alliance has 46 seats, 13% of whom are women

· In the U.S. House of Representatives 14% are women

The National Assembly consists of 400 members. Members of Parliament (MPs) are elected through an electoral system based on proportional representation. Votes are cast for parties, not individual candidates. Each party produces a list of candidates, is assigned a number of seats in proportion to the number of votes it receives in the election and fills those seats according to the priority designated on the list. Half the members come from national lists and half from regional lists. In the 1999 elections the ANC received 66.35% of the vote and received 266 seats. This system allows smaller parties some access to Parliament. In the 1999 election seven parties that received less than one percent of the votes cast each made it into Parliament, three with only one seat.

According to the Constitution the National Assembly “is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.” Any bill can originate in the National Assembly. Bills that are passed are then sent to NCOP for consideration. A bill concerning money can only be introduced in the Assembly. The National Assembly is presided over by a Speaker. The current Speaker, who has been in office since 1994, is Dr. Frene Ginwala (ANC).

The National Council of Provinces (NCOP) consists of 90 members. The Constitution declares that NCOP “represents the provinces to ensure that provincial interests are taken into account in the national sphere of government.” The delegation from each province consists of ten members, regardless of the size or population of the province. Delegations consist of four special and six permanent members. The four special delegates are drawn from the provincial legislature and include the Premier of the province or a person designated by the Premier as head of the delegation. These delegates may change from time to time. The six permanent members must be eligible to be members of the provincial legislature but cannot be members. All delegation members represent political parties; if a member resigns or dies the party holding the seat chooses another member. The delegation must reflect the strength of each political party in the provincial legislature.

The NCOP considers all national bills passed by the National Assembly. NCOP can pass, make or propose amendments to, or reject legislation. If NCOP rejects a bill or passes amendments it goes back to the Assembly. NCOP can only initiate or prepare bills on matters over which national and provincial legislatures jointly have the power to make laws and certain bills affecting the provinces.

“On 31 March 2003, 72,5% of the Public Service was African, 3,6% Asian, 8,9% coloured and 14,7% white. With regard to gender, 52,5% was female and 47,5% male. However, at senior management level 56% was African, 8,2% Asian, 10,1% coloured and 25,6% white. The gender breakdown for senior management was 22,1% female and 77,9% male.”

South African Yearbook 2003-2004

The President and Cabinet

The National Assembly elects the President from among its members. Once elected the President ceases to be a Member of Parliament. The President is Head of State and head of the national executive. According to the Constitution the President “exercises the executive authority, together with the other members of the Cabinet, by a) implementing national legislation except where the Constitution or an Act of Parliament provides otherwise; b) developing and implementing national policy; c) co-ordinating the functions of state departments and administrations; d) preparing and initiating legislation and e) performing any other executive function provided for in the Constitution or in national legislation.” The current President is Thabo Mbeki.

The National Assembly, by a majority of its members, can pass two kinds of motions of no confidence. It can adopt a motion of no confidence in the Cabinet (excluding the President), in which case the President must reconstitute the Cabinet. It can adopt a motion of no confidence in the President, in which case the President and the other members of the Cabinet and any Deputy Ministers must resign.

The administrative capitol is Pretoria and Parliament is in Cape Town. The Constitutional Court is based in Braamfontein.

Past Elections

1994 Elections

South Africa’s first non-racial democratic election was held in April 1994 and led to the establishment of a Government of National Unity (GNU). The GNU was led by the African National Congress (ANC) which had won 252 seats in the National Assembly. Nelson Mandela was elected President. The GNU also included the National Party (NP) and the Inkatha Freedom Party (IFP). Mandela named two Deputy Presidents, Thabo Mbeki (ANC) and F. W. de Klerk (NP), the former apartheid president. De Klerk held his position until the NP withdrew from the Government of National Unity in June 1996. Mandela appointed IFP leader Mangosuthu Gatsha Buthelezi as Minister of Home Affairs, a position he still holds.

· Voter turnout during the 1999 election was 89.3%

1999 Elections

In the 1999 national election, the African National Congress gained 266 seats in the National Assembly, the Democratic Party 38, the Inkatha Freedom Party 34, the New National Party 28, the United Democratic Movement 14, the African Christian Democratic Party six, the Pan Africanist Congress three, the United Christian Democratic Party three, the Vryheidsfront/Freedom Front three, the Freedom Alliance two, the Afrikaner Eenheidsbeweging one, the Azanian People’s Organisation one, and the Minority Front one.[*]

· The Democratic Alliance was formed in April 2002 by the merger of the Democratic Party and the Federal Alliance. As the second largest party in the National Assembly it is the official opposition.

· The New National Party (NNP) is the new name of the National Party

Several senior IFP members continue to serve in the national government. In addition to Buthelezi, Ben Skosana serves as minister of correctional services, Joe Matthews serves as deputy minister of safety and security and Musa Zondi serves deputy minister of public works. Ben Ngubane relinquished his position of minister of arts, culture, science and technology, a position he had held since 1999, when he was appointed ambassador to Japan in February 2004.

Floor Crossing

Parliament passed a series of bills creating a 15-day period “floor crossing” period. During this period members of national, provincial and local government legislatures could retain their seats despite defecting from the parties under whose banner they were elected. Floor crossing at the national and provincial level took place starting March 21, 2003 and at the municipal level in October 2002.

Twenty-two MPs changed party in the National Assembly. The ANC gained nine, all of whom had previously been members of the United Democratic Movement (UDM). As a result the ANC currently has over two-thirds of the members. The Democratic Alliance, the official opposition, gained eight. Five new parties were formed all of which only have one seat. There are now seventeen parties in the National Assembly, up from thirteen prior to the floor crossing. Twelve of these parties have fewer than 5 seats, including the UDM which dropped from 14 to 4. The makeup of the National Council of the Provinces did not change due to the ANC’s decision not to seek additional seats for its gains in the provincial legislatures. (See below for the impact of floor crossing at the provincial level.)

The next floor crossing period will be after the next election. The legislation allows two floor crossing periods during the five year life of Parliament.

Women

After the floor crossing 122 of members of the National Assembly are women, over 30%. Of the largest parties 36% of ANC MPs are women, compared to 13% for the DA, the second largest party. For other parties the percent is ACPD 29%, IFP 26% and NNP 15%. There are two parties whose sole MP is a woman. This is an increase from the first democratic election when 100 women were elected MPs, or 25%. By comparison, only 14% of the U.S. House of Representatives are women.

Membership in the National Assembly by Party
	Number of Seats after
Party	1994 Elections	1999 Elections	2003 Floor Crossing
African Christian Democratic Party (ACDP)	2	6	7
African National Congress (ANC)	252	266	275
Afrikaner Eenheid Beweging		1
Azanian People’s Organization (AZAPO)		1	1
Democratic Alliance (DA)			46
Democratic Party (DP)	7	38
Federal Alliance (FA)		2	2
Inkatha Freedom Party (IFP)	43	34	31
Minority Front (MF)		1	1
New National Party (NNP)*	82	28	20
Pan Africanist Congress (PAC)	5	3	2
United Christian Democratic Party (UCDP)		3	3
United Democratic Movement (UDM)		14	4
Vryheidsfront/Freedom Front (FF)	9	3	3
New political parties after floor crossing
African Independence Movement (AIM)			1
Alliance for Democracy and Prosperity (ADP)			1
Independent Democrats (ID)			1
National Action (NA)			1
Peace and Justice Congress (PJC)			1
Total	400	400	400
* The New National Party, formerly the National Party, was the ruling party during apartheid. Sources: Parliamentry Monitoring Group, IDSA, South Africa Fact Sheet 1995 (Africa Fund)

Provincial Government

There are nine provinces, each of which has a legislature with between 30 and 80 members. Elections are proportional with members selected from party lists in proportion to the percentage of votes each party receives. Each province has an Executive Council headed by a Premier. The Premier is elected by Members of the Provincial Legislature (MPLs) from among their members at its first sitting after an election. The Premier appoints an Executive Council, whose members are responsible to the Legislature. Provinces have legislative and executive powers concurrently with the national government in a wide variety of areas including housing, services, health care, road-traffic and development.

Currently seven of the nine provincial legislatures are controlled by the ANC and it operates in a coalition in two. The provincial Premiers are: Rev Makhenkesi Stofile (ANC) in the Eastern Cape; Mr Mbhazima Shilowa (ANC) in Gauteng; Mr. Manne Dipico (ANC) in the Northern Cape; Mr. Ndaweni Mahlangu (ANC) in Mpumalanga; Ms Isabella Direko (ANC) in the Free State; Mr Popo Molefe (ANC) in the North West; Adv Ngoako Ramatlhodi (ANC) in Limpopo (previously Northern Province); Mr. Marthinus van Schalkwyk (NNP) in the Western Cape, and Mr. Lionel Mtshali (IFP) in KwaZulu-Natal.

The provinces where the ANC operates in coalition are Western Cape (with the NNP) and KwaZulu-Natal (with the IFP). The relationship between the ANC and the IFP is extremely strained and the coalition is one forced on the two parties by the fact that neither could put together a majority in the provincial legislature without the other.

Western Cape: In the 1994 election the NP won an absolute majority - 23 of the seats in the 42 seat provincial legislature. In the 1999 elections the ANC won 42.07% of the vote, the NNP 38.39% and the DP 11.91%. Despite getting the most votes the ANC was originally excluded from government by a coalition of the NNP and the DP and Gerald Morkel (DP) was named Premier. But in November 2001 the NNP pulled out and Morkel was forced to resign. The NNP and the ANC formed a governing coalition and in June 2002 Marthinus van Schalkwyk (NNP) was named Premier. After subsequent floor crossings the ANC now holds 22 seats and the NNP 10 in the 42 seat provincial legislature. The ANC has continued to operate in coalition with the NNP, which still holds the premiership. But the ANC dominates the cabinet.

KwaZulu-Natal: In the 1994 elections the IFP won 41 of the 81 seats in the provincial legislature. In the 1999 elections the IFP won 41.9% of the vote, the ANC 39.38% and the DP 8.16%. Since no party won a majority of the seats, the ANC and IFP agreed to a coalition government. In the April 2003 floor crossing the ANC gained 3 seats, giving it a plurality or 35 seats against the IFP with 32 seats. There has been considerable tension between the ANC and IFP in the province but the two continue to operate in coalition.

“In late 2000, councils around the country were amalgamated, reducing the number of local authorities from 843 to 284. In the process, large ‘unicities’ were created in Cape Town, Durban, Pretoria, the East Rand and Johannesburg.”

City of Johannesburg,

official web site www.joburg.org.za

Municipal government

Local government consists of 284 municipalities set up in 2000 prior to municipal elections held in December of that year. Both the executive and legislative authority of a municipality is vested in its Municipal Council. This democratic transformation of local government involved the redrawing of municipal boundaries, the determination of the number of wards and councilors in each municipality, the establishment of new types of municipal councils and the redrafting of electoral laws.[1] Municipal governments are constitutionally mandated “to ensure the provision of services to communities in a sustainable manner.” Thus they play a key role in such areas as housing, electricity, water, garbage removal and infrastructure development.

The December 2000 municipal elections resulted in the ANC being the majority party in 170 municipal councils, the IFP 36, the DA 18, and the UCDC 1. In twelve municipal councils two parties tied. The ANC was one of the parties in all ties, eleven with the DA and one with the IFP.

The 15 day floor crossing period in October 2002 resulted in the DA loosing 417 councilors including 340 to the NNP and 51 to the ANC. The NNP gained 14 other seats from other political parties. The ANC gained a total of 128 seats. The Cape Town municipal council passed to the control of the ANC/NNP coalition from the DA.

Elections 2004

· 20.7 million people are registered to vote, 2.5 million more than in 1999

· 4 million are first time voters

· 54.8% of registered votes are women

· 64.5% are registered in urban areas

· 44.4% are between 18 and 35 years of age

South Africa’s third democratic elections for the National Assembly and provincial legislatures are set for April 14, 2004. The elections are run by the Independent Electoral Commission (IEC), a permanent body created by the Constitution to promote and safeguard democracy in South Africa. The IEC is tasked with the impartial management of free and fair elections. The voter registration cut off date was February 11. According to the IEC, 20,674,296 South Africans have registered to vote in election, over 2.5 million more than were registered in 1999.[2]

The election manifestos of the ANC and the major opposition parties focus on the same issues: the economy, poverty, jobs and unemployment, housing, services, crime and HIV/AIDS.

The ANC is the largest political party. It also maintains its alliance with the trade union federation COSATU and the South African Communist Party. In January at the ANC’s election launch rally in Pietermaritzburg, KwaZulu-Natal ANC President Thabo Mbeki stressed both the achievements in South Africa’s first ten years of democracy but also the ongoing challenges. “You can still see many squatter camps around Durban. This means despite the progress we’ve made in regard to housing, the problem still remains,” said Mbeki. commenting on shacks he had seen coming to the rally. He also stressed the need to fight poverty. “We have to commit to strengthen the economy so that we can attack more vigorously the problem of poverty.” He proposed an expanded public works program that would create one million jobs. “All of our development programmes must be carried out in a way that ensures all of our people get jobs.”[3]

A major feature of this election is the tension between the ANC and the IFP. It appears unlikely that IFP members will be appointed, or will accept appointment, to cabinet positions in the national government formed after the elections.

The ANC is seeking to achieve a two-thirds majority in the National Assembly and control over the two provinces in which it does not currently have a majority: KwaZulu-Natal and Western Cape. The IFP and the DA have formed a “Coalition for Change” and are also seeking control over KwaZulu-Natal and Western Cape. The DA will seek to increase its representation in the National Assembly and show that it is the main alternative to the ANC. The IFP is seeking to increase its percentage of the national vote. The small parties will seek to get enough of the votes nationwide to maintain their membership in Parliament.

The ANC is expected to remain a majority of seats in seven provincial legislatures: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, North West and Northern Cape.

Two provinces, Western Cape and KwaZulu-Natal, are being hotly contested.

In the Western Cape the ANC hopes to win 51% of the vote by itself or with its coalition partner the NNP. The DA has also set its goal as winning 51% of the vote. The Western Cape is differently demographically than most of South Africa. According to the 2001 census the majority of the population, 53.9% are Coloured. Africans are 26.7% of the population and whites are 18.4%. Africans, who have been moving in the Western Cape, were 20.9% of the population in 1996. Some observers believe the increase in the percentage of Africans (most of whom are Xhosa speakers) favors the ANC. The number of registered votes in the province has increased by 19% over the 1999 election. One question is how well the NNP, the ANC’s coalition partner in the province, will do. In the 1999 provincial elections the ANC won 42.07%, the NNP 39.39% and DP 11.91%. But in the 2000 municipal elections in the province, in which the NNP did not run, the DA won 49.88%. “We are quite convinced that we will win. We don't expect the NNP to do very well,” said Theuns Botha, who is expected to become Premier if the DA wins a majority.[4] The ANC has announced that even if it does win an outright majority it will maintain its coalition with the NNP in the province. In a January 19 statement the ANC stated that “The ANC-NNP relationship of cooperation remains intact, and will continue after the 2004 election… This relationship does not preclude either the ANC or NNP from running their own election campaigns to seek the maximum support possible in any part of the country.”

“We have finalized preparations regarding the deployment of the security and law enforcement authorities throughout South Africa to protect the rights of the citizens of this country to make their free choice. Appropriate measures will be employed in areas such as KwaZulu Natal where we are witnessing some cases of political intolerance and violence. We want to emphasise that no part of South Africa can be declared a no-go area to any political party for purposes of lawful political activity.”

Jacob Zuma, Deputy President,

February 25, 2004

In KwaZulu-Natal provincial elections will be hard fought. The ANC seeks to win the province outright but would have to increase its vote significantly to do so. In the 1999 provincial elections the IFP beat the ANC by just 2.5%. The number of registered voters has increased by nearly 11% over 1999. Even if the ANC increases its percentage it may not win an absolute majority which would allow it to govern alone. The IFP and the DA have formed an alliance and IFP leader Buthelezi and DA leader Tony Leon canvassed voters together.[5] The IFP/DA alliance hopes to get 51% of the vote and form a coalition government in the province - the two parties combined got approximately 50% of the vote in 1999. The IFP has indicated it will not continue to operate a coalition government with the ANC. Some 8% of the population of the province is Indian and their vote could impact the outcome. The ANC has complained that because of intimidation it cannot campaign in many areas and that IFP posters have been pasted over ANC posters. Several ANC workers have been killed.[6] The IEC has deployed twenty mediators to the province.

The major political parties are seeking to increase their strength outside their core constituencies. The DA, which has received a large percent of its supports from whites, launched in election manifesto in Soweto. The ANC is also reaching out to whites, and is campaigning in areas in KwaZulu-Natal and Western Cape where it is not the dominant party.

Constitution and the Constitutional Court

The Constitutional Court plays a role in interpreting South Africa's constitution similar to that of the U.S. Supreme Court. But it is a unique institution whose important decisions have already made noteworthy contributions to the protection of citizen rights. The 1993 an interim constitution was adopted and in 1996 a final constitution was adopted which went into effect in February 1997. The interim and final constitutions include a Bill of Rights (see Appendix I). These rights are enforceable by the courts. Rights guaranteed include freedom of speech and expression, religion and the right to assembly and petition. Every person is equal before the law and is guaranteed the right to life and human dignity. Nobody can be detained without trial. Torture and cruel or inhuman punishment are prohibited. Discrimination based on race, gender, sexual orientation, age or disability is prohibited. A series of social and economic rights in the final Constitution include the right to adequate housing and of children to shelter. It is the government’s duty to take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of these rights. A specific provision allows for affirmative action measures. When interpreting the Constitution, the Court is required to consider international human rights law and may consider the law of other democratic countries.

Many of the judges have a strong human rights background. The President of the Court, Justice Arthur Chaskalson, in 1978 helped established the Legal Resources Centre, which sought to use law to pursue justice and human rights even under the apartheid state, and he served as director for 15 years. Justice Richard Goldstone headed a commission of inquiry into political violence established in 1991. Justice Albie Sachs, a political activist and detainee, went into exile in 1966 and in 1988 was almost killed by a South African government car bomb while working in Mozambique. Justice ZM Yacoob, who has been blind since youth, represented members of the UDF at the Delmas Treason Trial (1985-1989).

Landmark cases

Death penalty: In June 1995 the State v. T Makwanyane and M Mchunu the Court ruled the death penalty unconstitutional. In its ruling the Court said “The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in Chapter Three. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby.”
Right to housing: In October 2000, in Government of South Africa v. Grootboom and others, the court made an important ruling upholding the state’s obligations under the Constitution to meet the right of access to adequate housing and shelter for children. The Court noted that the Constitution recognizes the difficulty of achieving this task and does not oblige the state to go beyond its available resources to realize these rights immediately. Mrs. Grootboom was one of a group of 510 children and 390 adults living in an informal settlement near Cape Town. The Court emphasized that the Constitution did not give the respondents the right to shelter immediately. However, the Court found that the programs in operation in the area of the Cape Metropolitan Council fell short of its obligations. Although the state’s overall housing program had resulted in a significant number of homes being built, it failed to provide any form of temporary relief to those in desperate need, with no roof over their heads, or living in crisis conditions. The immediate need for relief could be met short of housing which fulfils the requisite standards of durability, habitability and stability. The Court stressed that the judgment should not be understood as approving any practice of land invasion for the purpose of coercing the state into providing housing.
Right to health: On July 5, 2002 in Minister of Health and others v Treatment Action Campaign and others the Court ruled the failure by government to provide comprehensive program to prevent mother-to-child transmission of HIV unreasonable and unconstitutional.

Institutions Supporting Democracy

The Constitution establishes a series of institutions to support constitutional democracy.

South African Human Rights Commission (SAHRC): The Constitution establishes the SAHRC and its powers are further delineated in the Human Rights Commission Act of 1994. The SAHRC works with government, civil society and individuals, both nationally and abroad, to fulfill its Constitutional mandate and serves as both a watchdog and a visible route through which people can access their rights. The role of the HRC is to promote respect for human rights and a culture of human rights; promote the protection, development and attainment of human rights; and monitor and assess the observance of human rights in the Republic. The Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power to investigate and to report on the observance of human rights; to take steps to secure appropriate redress where human rights have been violated; to carry out research; and to educate.

Independent Electoral Commission (IEC): The IEC was established in the 1993 Constitution to oversee the first democratic elections and is included in the final Constitution. The IEC, as described on its web site, “is a permanent body created by the Constitution to promote and safeguard democracy in South Africa. Although publicly funded and accountable to parliament, the Commission is independent of the government. Its immediate task is the impartial management of free and fair elections at all levels of government.”

Commission on Gender Equality (CGE): The Constitution specifically grants the CGE powers to promote respect for gender equality and the protection, development and attainment of gender equality. The Commission functions include gathering information and conducting education on gender equality; monitoring and evaluating policies and practices of State organs, statutory and public bodies, as well as the private sector, to promote gender equality; evaluating Acts in force, or proposed by Parliament, affecting or likely to affect gender; investigating any gender-related complaints; liaising with institutions, bodies or authorities with similar objectives; and conducting research to further the objective of the Commission.

Conclusion

South Africa has an extremely progressive constitution that enshrines democracy and human and social rights. There is vibrant debate and opposition political parties openly criticize the governing party. It has a vibrant civil society and a free press. Much progress has been made in democratization of the state and society.

The African National Congress remains by far the largest political party in South Africa and will undoubtedly come out on top in the forthcoming elections. But the other political parties have significant strength at the provincial and municipal level, especially in KwaZulu-Natal and Western Cape and may beat the ANC in these provinces in the April 2004 elections. The major parties are seeking to increase their support beyond their traditional constituencies. And the parties are campaigning on the issues – poverty, jobs, unemployment and AIDS. The ANC points to its considerable achievements and programs strengthen the economy and to meet people’s needs. The opposition parties campaign on what still needs to be done. Democracy is alive and well in South Africa.

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Richard Knight is a New York City based consultant on Africa, human rights and economic justice. He previously worked at the American Committee on Africa/The Africa Fund. His web site is www.richardknight.com.

Acknowledgements and Sources

This paper was produced based on numerous sources outlined below. In many cases I have borrowed liberally from the phrasing of the sources. - RK

South African government sources including: The South African Constitution, the South African Human Rights Commission (http://www.sahrc.org.za/), the Independent Electoral Commission (http://www.elections.org.za/), Parliament (http://www.parliament.gov.za/)and various other government web pages and sites available from http://www.gov.za/. Various provincial web sites were also consulted. Political party web sites including: ANC (http://www.anc.org.za/), the DA (http://www.da.org.za/), the IFP (http://www.ifp.org.za/), the NNP (http://www.natweb.co.za/), the PAC (http://www.paca.org.za/) and the UDM (http://www.udm.org.za/). Many of these sites include the full text of their election manifesto. Other sources include: Human Rights Watch, the Parliamentry Monitoring Group (http://www.pmg.org.za/), the F W de Kerk Foundation (http://www.fwdklerk.org.za/), the Institute for a Democratic South Africa (IDSA) (http://www.idasact.org.za/) and various press sources footnoted at the end of this paper.

Appendix I

South African Bill of Rights

(Excerpts)

Equality

9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Human dignity

10. Everyone has inherent dignity and the right to have their dignity respected and protected.

Life

11. Everyone has the right to life.

Freedom and security of the person

12. (1) Everyone has the right to freedom and security of the person, which includes the right

not to be deprived of freedom arbitrarily or without just cause;
not to be detained without trial;
to be free from all forms of violence from either public or private sources;
not to be tortured in any way; and
not to be treated or punished in a cruel, inhuman or degrading way.

(2) Everyone has the right to bodily and psychological integrity, which includes the right

to make decisions concerning reproduction;
to security in and control over their body; and
not to be subjected to medical or scientific experiments without their informed consent.

Slavery, servitude and forced labour

13. No one may be subjected to slavery, servitude or forced labour.

Privacy

14. Everyone has the right to privacy, which includes the right not to have

their person or home searched;
their property searched;
their possessions seized; or
the privacy of their communications infringed.

Freedom of religion, belief and opinion

15. (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

(2) Religious observances may be conducted at state or state-aided institutions, provided that

those observances follow rules made by the appropriate public authorities;
they are conducted on an equitable basis; and
attendance at them is free and voluntary.

(3)

This section does not prevent legislation recognising

marriages concluded under any tradition, or a system of religious, personal or family law; or
systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.

Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

Freedom of expression

16. (1) Everyone has the right to freedom of expression, which includes

freedom of the press and other media;
freedom to receive or impart information or ideas;
freedom of artistic creativity; and
academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to

propaganda for war;
incitement of imminent violence; or
advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Assembly, demonstration, picket and petition

17. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

Freedom of association

18. Everyone has the right to freedom of association.

Political rights

19. (1) Every citizen is free to make political choices, which includes the right

to form a political party;
to participate in the activities of, or recruit members for, a political party; and
to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

(3) Every adult citizen has the right

to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
to stand for public office and, if elected, to hold office.

Citizenship

20. No citizen may be deprived of citizenship.

Freedom of movement and residence

21. (1) Everyone has the right to freedom of movement.

(2) Everyone has the right to leave the Republic.

(3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.

(4) Every citizen has the right to a passport.

Freedom of trade, occupation and profession

22. Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

Labour relations

23. (1) Everyone has the right to fair labour practices.

(2) Every worker has the right

to form and join a trade union;
to participate in the activities and programmes of a trade union; and
to strike.

(3) Every employer has the right

to form and join an employers' organisation; and
to participate in the activities and programmes of an employers' organisation.

(4) Every trade union and every employers' organisation has the right

to determine its own administration, programmes and activities;
to organise; and
to form and join a federation.

(5) Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

(6) National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

Environment

24. Everyone has the right

to an environment that is not harmful to their health or well-being; and
to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that

prevent pollution and ecological degradation;
promote conservation; and
secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Property

25. (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

(2) Property may be expropriated only in terms of law of general application

for a public purpose or in the public interest; and
subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including

the current use of the property;
the history of the acquisition and use of the property;
the market value of the property;
the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
the purpose of the expropriation.

(4) For the purposes of this section

the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and
property is not limited to land.

(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

(9) Parliament must enact the legislation referred to in subsection (6).

Housing

26. (1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Health care, food, water and social security

27. (1) Everyone has the right to have access to

health care services, including reproductive health care;
sufficient food and water; and
social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3) No one may be refused emergency medical treatment.

Children

28. (1) Every child has the right

to a name and a nationality from birth;
to family care or parental care, or to appropriate alternative care when removed from the family environment;
to basic nutrition, shelter, basic health care services and social services;
to be protected from maltreatment, neglect, abuse or degradation;
to be protected from exploitative labour practices;
not to be required or permitted to perform work or provide services that

are inappropriate for a person of that child's age; or
place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;

not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be

kept separately from detained persons over the age of 18 years; and
treated in a manner, and kept in conditions, that take account of the child's age;

to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
not to be used directly in armed conflict, and to be protected in times of armed conflict.

(2) A child's best interests are of paramount importance in every matter concerning the child.

(3) In this section "child" means a person under the age of 18 years.

Education

29. (1) Everyone has the right

to a basic education, including adult basic education; and
to further education, which the state, through reasonable measures, must make progressively available and accessible.

(2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account

equity;
practicability; and
the need to redress the results of past racially discriminatory laws and practices.

(3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that

do not discriminate on the basis of race;
are registered with the state; and
maintain standards that are not inferior to standards at comparable public educational institutions.

(4) Subsection (3) does not preclude state subsidies for independent educational institutions.

Language and culture

30. Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

Cultural, religious and linguistic communities

31. (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community

to enjoy their culture, practise their religion and use their language; and
to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

Access to information

32. (1) Everyone has the right of access to

any information held by the state; and
any information that is held by another person and that is required for the exercise or protection of any rights.

(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Just administrative action

33. (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights, and must

provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
impose a duty on the state to give effect to the rights in subsections (1) and (2); and
promote an efficient administration.

Access to courts

34. Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

Arrested, detained and accused persons

35. (1) Everyone who is arrested for allegedly committing an offence has the right

to remain silent;
to be informed promptly

of the right to remain silent; and
of the consequences of not remaining silent;

not to be compelled to make any confession or admission that could be used in evidence against that person;
to be brought before a court as soon as reasonably possible, but not later than

48 hours after the arrest; or
the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;

at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and
to be released from detention if the interests of justice permit, subject to reasonable conditions.

(2) Everyone who is detained, including every sentenced prisoner, has the right

to be informed promptly of the reason for being detained;
to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and
to communicate with, and be visited by, that person's

spouse or partner;
next of kin;
chosen religious counsellor; and
chosen medical practitioner.

(3) Every accused person has a right to a fair trial, which includes the right

to be informed of the charge with sufficient detail to answer it;
to have adequate time and facilities to prepare a defence;
to a public trial before an ordinary court;
to have their trial begin and conclude without unreasonable delay;
to be present when being tried;
to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
to be presumed innocent, to remain silent, and not to testify during the proceedings;
to adduce and challenge evidence;
not to be compelled to give self-incriminating evidence;
to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;
not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;
to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
of appeal to, or review by, a higher court.

(4) Whenever this section requires information to be given to a person, that information must be given in a language that the person understands.

(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

[*] For political party names and acronyms see table Membership in the National Assembly by Party on page 4.