GOVERNMENT : S. Africa Assembly Defies Convention in Drafting Constitution

It’s fair to say that Alexander Hamilton and America’s other founding fathers never surfed the Internet.

But the founding fathers and mothers of South Africa’s draft constitution have their own Web page, e-mail address, toll-free telephones and much more, all so citizens can get a word in edgewise as basic rights and freedoms are hammered out page by page.

And words have come: about 20,000 written, faxed and cyberspace submissions so far. Petitions carry nearly 2 million signatures, mostly by people keen to keep Parliament in Cape Town (they appear to have won) and those battling to reimpose the death penalty (they lost last year in court).

But a May 9 deadline now looms. So the 46 legislators who are drafting the new constitution meet politely in public, then scramble behind closed doors for what they call bilaterals, trilaterals and multilaterals--conclaves of political parties--to privately resolve remaining disputes.

On a recent morning, the public session adjourned so a subgroup writing the bill of rights could duck out. “Part of the class is dismissed,” Cyril Ramaphosa, chairman of the Constitutional Assembly, announced cheerfully.

Ramaphosa, who also is secretary-general of the African National Congress, does his best to ban rancor. When two members began arguing loudly, he hastily ordered a tea break. When debate resumed, comity and consensus were back.

This being post-apartheid South Africa, the fourth and latest draft constitution is a uniquely ambitious document. It guarantees rights Hamilton and the others never considered and probably could not imagine.

Discrimination is banned “directly and indirectly” on grounds of “race, gender, sex, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

That much is agreed--though the difference between gender and sex remains murky. Still under debate is whether to also protect “affiliation or any other grounds,” the kind of sweeping legal language that gives lawyers anxiety and a steady income.

Then there are so-called second-generation, or socioeconomic, rights, unusual in a constitution. They guarantee the right to a healthy environment and access to adequate housing, plus decent health care, food, water and social services.

“A lot of other rights are quite abstract to people who only really want clean water,” explained Katherine McKenzie, the assembly spokeswoman.

*

In a country where police-state tactics were used to perpetuate white rule, the new compact has 25 separate sub-clauses to protect the rights of anyone arrested, detained or accused. Even stricter limits are set to stop a future government from declaring a state of emergency, as was done under apartheid.

Free speech is more problematic. Debate rages over whether “hate speech,” especially on race, should be banned in a democracy. And religion is delicate. The drafters can’t decide, for example, whether the preamble should refer to God.

Other hot-button issues are also unresolved, from the role of traditional tribal chiefs to the powers of the nine provinces relative to the national government. Even what languages should be spoken is undecided.

The interim constitution passed in December 1993, four months before the first all-race democratic elections, mandated 11 official languages. Rather than shrinking the unwieldy Babel, the new charter may add a 12th: sign language for the deaf.

“Language is a very emotive issue,” McKenzie said. “Tempers really flare. In committees, if someone gets up and speaks in Afrikaans, others get up and respond in Zulu or Xhosa.”

For now, the biggest problem is a boycott by the Zulu nationalist Inkatha Freedom Party. Mangosuthu Buthelezi led his party, the nation’s third largest, out of the assembly last year to dramatize demands for virtual autonomy for KwaZulu-Natal province, Inkatha’s conflict-scarred stronghold.

*

Buthelezi has warned that the constitution won’t have “legitimacy” unless Inkatha participates. But Ramaphosa only smiled during another tea break. “They will find this constitution grows on them,” he said.