This paper will briefly examine the process of creating a new South African Constitution in the 1990s. Nearly a decade of talks preceded the adoption of South Africa's first multi-racial democratic constitution in 1994. These talks and the subsequent drafting conventions created an astonishing document, stunning in its novelty in South African history, in its expressed values, and in its fundamental compromises.
Part Three draws on a wide variety of primary documents from disparate sources to offer an original historical reconstruction of the inclusion of sexual orientation protections in the policy documents, Bill of Rights drafts, and constitutional proposals of the various South African political parties, as well as in the early drafts of the constitutional text. In addition to reviewing the rights protections in legal documents preceding the 1996 Constitution and public opinion expressed in the Constitutional Assembly's Public Participation Programme, this section examines the increasingly visible, newly political, and haltingly multi-racial group of activists attempting to redefine gay rights in the context of liberation. This historical account examines these developments over three time periods: the era of constitutional theorizing preceding the lifting of the ban on the ANC and other liberation movements in 1990, the drafting period for the 1993 Interim Constitution, and the time period for review and final negotiations regarding the 1996 Constitution.
Part Four uses this freshly reconstructed history and the earlier procedural overview to argue that the unique characteristics of the political and social history of South Africa set the stage for novel protections, that treatment of sexual orientation-based equality as an unexamined corollary to the dominant ANC ideology of non-racialism provided the justification, and that an autocratic constitutional drafting process secured the final pro-gay content of the discrimination protections.
32 N.Y.U. J. of Int'l Law & Politics 997 (2000)