P1-LU6 — The Liberation Movement & Constitutionalism
← P1-LU5 Western Component in South Africa | Next → P1-LU7 Human Rights in South Africa
Learning Outcomes
After studying this unit you should be able to:
- - Discuss the role played by the South African liberation movement in the development of apartheid and post-apartheid law
- - Identify political activists who contributed to constitutional democracy and the recognition of human rights
- - Discuss the historical significance of the Freedom Charter in attaining a constitutional democracy
6.1 What Is a National Liberation Movement?
A political movement aimed at national independence and freedom from domination. In South Africa, the liberation movement worked towards:
- - A just society and legitimate legal order
- - Initially through passive resistance and civil disobedience (non-violent protest by deliberately breaking unjust laws)
- - From the early 1960s, through an armed struggle
It gained international support from the Organisation of African Unity (OAU).
6.2 Background: Oppressive Laws Before Apartheid (and During)
Racial discrimination did not begin in 1948. Laws of political, social and economic segregation existed throughout SA history.
Key examples of apartheid-era oppressive legislation:
| Act | Year | Effect |
|---|---|---|
| Natives Land Act | 1913 | Limited black land ownership to designated reserves (only 7% of SA land) |
| Natives (Urban Areas) Act | 1923 | Created separate urban locations for blacks; controlled influx |
| Native Administration Act | 1927 | Separate court system for blacks; distorted indigenous law |
| Group Areas Act | 1950 | Forced racial separation of residential areas |
| Pass laws | Various | Required black people to carry passbooks at all times |
⚠️ Parliament was supreme during this era — it could pass any legislation regardless of content, as long as procedure was followed. There was no constitutional check on parliament's power.
6.3 Key Events in the Liberation Movement
The African National Congress (ANC)
- - Founded in 1912 (as the South African Native National Congress)
- - Led campaigns of passive resistance against unjust legislation
- - Worked towards a democratic, non-racial South Africa
The Freedom Charter (1955)
Adopted at the Congress of the People at Kliptown on 26 June 1955.
Key principles declared in the Freedom Charter:
- - "South Africa belongs to all who live in it, black and white"
- - Equality before the law for all
- - Redistribution of land and wealth
- - Access to education, housing, healthcare
The Freedom Charter laid the ideological groundwork for the 1996 Constitution. Many of its principles are reflected in the Bill of Rights.
The Sharpeville Massacre (21 March 1960)
- - Police opened fire on unarmed protesters against pass laws at Sharpeville
- - 69 people killed; 180 wounded
- - Aftermath: ANC and PAC were banned; state of emergency declared
Legal-historical significance of Sharpeville:
- - Set in motion events that ultimately led to the abolition of pass laws
- - Eventually culminated in constitutional protection of rights to citizenship and human dignity
- - Key turning point — showed the international community the brutality of the apartheid regime
Steve Biko (1946–1977)
- - Leader of the Black Consciousness Movement
- - Arrested and killed in police custody (1977)
- - Police officers responsible were denied amnesty by the TRC in 1999 but were never prosecuted
The Harare Declaration (1989)
- - Adopted by the ANC in exile
- - Set out conditions for negotiations with the apartheid government
- - Paved the way for the unbanning of political organisations and Mandela's release
The Unbanning and Transition (1990–1994)
| Date | Event |
|---|---|
| 2 February 1990 | President FW de Klerk unbanned all political parties |
| 11 February 1990 | Nelson Mandela released from prison |
| 1993 | Interim Constitution adopted (with Bill of Rights) |
| 27 April 1994 | First free national election — ANC wins |
| 1994 | Interim Constitution comes into force |
| 1996 | Final Constitution adopted |
6.4 The Liberation Movement's Dual Impact on Law
Paradoxically, the liberation movement influenced the development of both apartheid law and post-apartheid law:
| Impact | Explanation |
|---|---|
| On apartheid law | The struggle caused panic in the white leadership → prompted more repressive legislation |
| On post-apartheid law | Civil disobedience and activism ultimately led to constitutional democracy and a legitimate legal order |
The liberation movement challenged the legitimacy of the Western (Roman-Dutch) legal regime and questioned whether it could be the "true foundation" of SA law to the exclusion of indigenous law.
6.5 Emerging Legal Theories from the Liberation Struggle
- - Decolonialisation — questioning the legitimacy of colonial legal structures
- - Land redistribution — a recurring demand, reflected in the Freedom Charter and s 25 of the Constitution
- - Development of SA legal theory of sovereignty
- - International recognition of South Africa's statehood shaped by the liberation movement
Self-Assessment Questions
- - Explain how the liberation movement contributed to both apartheid law and post-apartheid law.
- - What was the Freedom Charter and why is it significant for SA legal history?
- - Explain the legal-historical significance of the Sharpeville massacre.
- - What is a "national liberation movement"?
- - Explain how Roman-Dutch law came to apply at the Cape (link back to LU5).