OLIVER’S DREAM PART III

About This Project

The Constitution as a Framework for Struggle

The Constitution-making process: Crisis after crisis and how we overcame them

I didn’t sleep the night before the actual negotiations started. It was 1992, and the prospect of spending days on end in the gloomy, sprawling building near the Johannesburg airport grandiosely entitled the World Trade Centre was not enticing, even if it was slightly enlivened by a banner proclaiming CODESA (Convention for a Democratic South Africa). Yet what kept me awake was not the cheerlessness of the venue. It was fear. My deep dread was that, after all the generations of struggle – in my case, working as an advocate by day and in the underground at night, then spending days, weeks and months in solitary confinement, with sleep deprivation thrown in, followed by 24 years of exile, seven as a stateless person, and being blown up by an apartheid bomb, losing my arm and my sight in one eye – my terror was that we would give away in a few weeks at the negotiating table all the gains we had won through strenuous travail over the decades in the trenches. I thought of my close comrades who had been tortured to death or assassinated: Solwandle Looksmart Ngudle, Elijah Loza, Babla Saloojee, Ruth First and Joe Gqabi. Would we betray their memory?

 

With these thoughts hovering over me, the next morning at the appointed hour there they were – ‘the enemy’ – almost all white men dressed in dark suits with somber ties. And though they bore themselves with the hauteur of people used to being totally in charge of everything, their anxiety seemed to be even greater than ours. Would they be seen as betraying their ‘volk’? They stared at us – so motley we must have seemed to them, so diverse in gender, costume and age. Was this what South Africa was coming to? The moment they had said would never come to pass, that they had resisted with jail, torture, banishment, execution and exile, had indeed arrived. We stared back at them. For us, this was the moment we had longed for all our lives; for my generation, since joining the Defiance Campaign and adopting the Freedom Charter in the 1950s; for a younger generation, since the Soweto uprising in 1976; and for an even younger one, since the formation of the United Democratic Front in 1983.

 

Though deeply located in history, I felt profoundly displaced in time, stung by residues of anachronistic anger against Minister of Justice John Vorster, long departed from the scene, while comrades at my side raged against Jimmy Kruger. But for all of us, the dream of Luthuli, Tambo and Mandela was at last beginning to be realised.

 

Then the engagement started. And our first breakthrough was on the most banal issue imaginable – whether smoking should be permitted in the negotiating chamber!  We had heavy smokers on our side – Kader Asmal and Valli Moosa needed their puff – and there were heavy smokers on the other side, including FW De Klerk. But the anti-smokers on both sides joined hands and by a large majority it was agreed there would be no smoking. A tiny step forward for humankind.

 

Every constitution-making project has a central drama

It is surprising that the central drama of the South African constitution-making project is not known. It wasn’t over the economic system, but over who should have the right to determine it. It wasn’t over a unitary state versus federalism – that was important but relatively secondary. It was in fact over an issue that had been raised while we were still in Lusaka: group rights, as Pretoria had demanded vs majority rule and a Bill of Rights, as the ANC had insisted on.

 

As the struggle against apartheid had visibly gathered strength inside South Africa, and worldwide denunciation of the system had intensified, proposals for new constitutional arrangements in South Africa had come pouring in from all sides. Invariably they had been based on forms of power-sharing between whites and blacks. The tenet had been that, given the deep historical and cultural cleavages in South Africa, the only way that the white minority could be expected to surrender their monopoly on power was through granting them secure constitutional protections against a black majority rule.  The white section of the population and the black section would have to find ways of achieving consensus on how South Africa should be governed.

 

Oliver Tambo’s rejection of this approach had taken both conceptual and practical forms. At the conceptual level he had insisted that we start to look at ourselves as citizens of a new, free, united and democratic South Africa, and not base our structures of government on race or ethnicity. This meant accepting the democratic principle of majority rule. He accepted, however, that many whites were concerned that their rights were going to be disregarded in the same way that they had disregarded the right of others. They would be constitutionally protected, but not through group rights, not through having whites representing whites in parliament, Zulus – Zulus, not through having three presidents, not through cantons, but through a Bill of Rights.

 

Tambo had had built on research done by Pallo Jordan in Lusaka in 1986 on the constitutional proposals that had been coming in. Pallo had suggested that the ANC’s answer take account of the fact that the ANC had supported a Bill of Rights as far back as 1922. Then in African Claims in 1944, a response to Roosevelt and Churchill’s Atlantic Charter, it had issued a further Bill of Rights document. The Freedom Charter of 1955 could also be seen as a conceptual precursor. And Tambo said: this is the answer. You protect people from abuse not because they’re black, not because they’re white, not because they’re in the majority, not because they’re in the minority, but because they’re human beings. We have to start looking at everybody as a human being, as a person with fundamental rights. Simply because you are born and are on this Earth, you have rights. That was the battle we had to fight – that was the central drama of the struggle over South Africa’s new Constitution.

 

At the practical level, Tambo had announced in 1987 that the ANC stood for a multi-party democracy in South Africa. A year later he had declared that the ANC supported an entrenched Bill of Rights to protect the fundamental rights of all South Africans. During this period he had established the ANC Constitutional Committee in Lusaka. Its task had been to work directly with him and report to the National Executive Committee (NEC) on a new Constitution for South Africa.  Headed initially by Jack Simons and then by Zola Skweyiya, it had included people like Penuell Maduna, Ted Phakane, Kader Asmal, Brigitte Mabandla, Jobs Jobodwana and myself.

 

The Constitutional Committee had proposed that it would be inappropriate for the ANC to produce a draft new Constitution while in exile, and the NEC had accepted this. We had agreed that as a matter of principle, the new democratic Constitution should be drafted on South African soil by a Constituent Assembly with a mandate from the whole nation. Thus, the ANC would not draft the Constitution itself, but make its proposals to the envisaged Constituent Assembly when the appropriate conditions existed. In the meanwhile, however, it could set out the basic principles on which it believed a new constitutional order should be created.

 

Accordingly, in 1988 a workshop organised by the NEC and the Constitutional Committee in Lusaka had produced a document entitled Constitutional Guidelines. The Constitutional Guidelines had set out to convert the principles of the Freedom Charter into an operational document for the structuring of government in a democratic South Africa. Later in the year, the Constitutional Committee had followed with a draft ANC Bill of Rights for a democratic South Africa. These documents had been circulated nationally and internationally for comment and critique by members and all interested parties.

 

The draft Bill of Rights had projected an emancipatory rather than a conservative vision of fundamental rights and put social, economic and cultural rights, together with gender rights and workers’ rights, firmly on the agenda. In this way, the OR vision of conjoining majority rule in a non-racial democracy with an emancipatory pro-people Bill of Rights, had, we believed, wrested the debate away from power-sharing between separate racial groups. It had placed the issue of achieving a non-racial democracy serving the interests of the dispossessed at the centre of discussion.

 

We had regarded ourselves as revolutionaries in the sense that we were dedicated to the total destruction of the system of apartheid and creation of a new system and that we were willing to give our lives for that cause. We had lived intense, committed, engaged, joyous lives, perhaps the most privileged lives of people on earth because we were part and parcel of a freedom struggle. It was a struggle for freedom, it wasn’t a struggle for power. It was a struggle to enable the people of our country to feel free – to be free. It was about achieving the Tambo dream, if you like. And when we had come back to South Africa, we had brought that spirit with us.

 

Preparing ourselves for freedom

In a film some of us are currently developing on the constitution-making process, a prominent person from ‘the other side’ [as ‘the enemy’ came to be called as negotiations advanced] says that when De Klerk made his 2 February 1990 speech in Parliament, it was as though he had scored a drop goal right between the posts, paused to acknowledge the cheers of the crowd, and then had found himself at a loss on to how to carry on.

 

It soon became clear that in just about every aspect our side turned out to be better prepared for constitutional battle. This is not just a boast. I recall how, well before the formal constitutional negotiations had started, an official from US Aid had offered support to the ANC Constitutional Committee, saying that the American government would like to help level the playing fields. My response had been that if they wished to level the playing fields then they should do what they could to help the South African government.

 

Of course we had a much easier path to follow.  They were the people who had constructed and lived by racism, apartheid – denounced by the world. We were the apostles of democracy, of freedom and justice. But it wasn’t just that we had a powerful moral argument. What gave us the edge was the presence of three precious features of our movement: the transnational experience ANC people had brought back with them from exile; an internal culture of openness and inclusivity exemplified by the quality of leadership given by Albert Luthuli at home and Oliver Tambo abroad; and the know-how the ANC negotiating team had gained from a series of widely based workshops on critical constitutional issues.

 

We’d seen the good, the bad and the ugly

Our first advantage was that ANC people had lived in all continents and had experienced first hand the plusses and minuses of just about every form of government in the world.  We had spent years in India; in both East and West Germany; in the Soviet Union, China and Bulgaria; in the Scandinavian countries; in the UK and the Netherlands, Canada, Norway, Sweden, the USA, Australia and Cuba. Above all, we had resided all over the African continent, directly experiencing one-party rule, people’s democracy, military dictatorship and multi-party democracy. We’d lived in Egypt and Nigeria, Tanzania, Zimbabwe and Zambia, Mozambique and Angola, Cote D’Ivoire. I still remember our Comrade President, Oliver Tambo, coming to visit us in Mozambique. In one day he flew from the one-party state of Zambia to the People’s Republic of Mozambique. He was then driven up to the monarchy of Swaziland before flying to the military-ruled Lesotho.  We’d seen the good, we’d seen the bad and we’d seen the ugly on our continent, people who had achieved independence long before us grappling with the kinds of problems our country would have to confront. And we’d seen problems inside our own organisation – abuse of office, abuse of power. So these weren’t just theoretical matters for us, these were lived experiences.

 

Mandela continues ANC traditions of openness and inclusivity

The second great advantage that we brought to the negotiating table was that we could rely on the ANC’s own traditions of openness and inclusivity, exemplified by the quality of leadership given in previous decades by Albert Luthuli and Oliver Tambo. Happily, Nelson Mandela was to maintain and develop this tradition.

 

There is a story currently doing the rounds that at some key moment Mandela got together with certain captains of big business and assured them that, provided everyone got the vote, there would be nothing in the new Constitution to rock the existing economic system. It is further claimed by some that he promised that there would be no expropriation of property without full compensation being paid on a willing seller willing buyer basis. The kinder version of this narrative is that his position was weak and he had no other option. A less generous account is that he was naïve and trusting. The most critical version is simply that he was a sell out. The implication underlying all of these versions is that as a result of these assurances, the Constitution effectively prevented significant steps being taken to bring about meaningful land redistribution.

 

These claims reduce to a simple all-defining chat by a few top personalities what was in fact an arduous, six-year-long violence-beset struggle over the Constitution, with a total breakdown and one severe crisis after the other. The role of millions of people who participated in different ways is simply eliminated. The making of the Constitution was in fact a huge act of decolonisation in South Africa. It tore down the pillars of white domination in the political sphere and provided the instruments for achieving the next stage of liberation, namely, economic and cultural emancipation.

 

These claims also completely misrepresent the actual role that Mandela played in the constitution-making process. I remember vividly how stung Mandela was when, after delivering a Presidential Report at the opening of the first meeting of the newly elected NEC of the ANC in 1991, a member had diplomatically suggested that, in the tradition of Tambo, he should be the last – and not the first – to speak, summing up the debate and adding his own views. Mandela had his patrician side, and took his responsibilities as a leader very seriously. Yet he had fully accepted the comment, and from then onwards was to keep his eyes and ears open all the time, but very rarely intervene himself.

 

He would certainly have had meetings with business leaders, even if not nearly as many as he would have had with workers and their representatives. And he would probably have exerted his charm and sought to enlist them in helping to ensure that the introduction of democracy and majority rule would not lead to economic collapse and loss of jobs and livelihoods. I can only speculate. But what I can say with total conviction is that not once in the six years of constitution-making was I made aware of Mandela issuing instructions or even using nods and winks to any ANC negotiation group to which I belonged, indicating any preference he might have had regarding the economic system, property or land.

 

Mandela’s role in negotiations was in fact to be the public face of the ANC and to ensure that the negotiation process remained firmly on track. The only substantive issue in the Constitution on which I can recall Mandela having taken a direct individual position was in relation to the voting age. The Constitutional Committee proposed that the voting age be 18. Mandela insisted that it be 16. On three occasions we had a standoff with him. On the third occasion the Constitutional Committee designated me to dig in our collective heels on the 18-year threshold. Mandela reluctantly climbed down, saying huffingly that history would prove he’d been right. Yet some years later when seeking to nudge Thabo Mbeki away from his disastrous position on HIV/AIDS, he cited his own stubbornness on the voting age as an example of how a president could be wrong and should be willing to change his mind.

 

UWC workshops on critical constitutional issues

The third advantage came from a series of widely based workshops on critical constitutional issues organised in advance of the negotiations.

 

The Negotiations Commission which was headed by Cyril Ramaphosa and Frene Ginwala, and reported regularly to the NEC right up to the first democratic elections held on 27 April 1994, was able to draw heavily on the work of the ANC Constitutional Committee.

 

When our team had returned from exile to South Africa in 1990 we had been joined by people like Pius Langa, Dullah Omar, Bulelani Ngcuka, Fink Haysom and Essa Moosa. Then, at the request of President Mandela, Arthur Chaskalson and George Bizos – Mandela’s lawyers from the Rivonia Trial – had come to attend and participate actively in our meetings. So our Constitutional Committee had become pretty powerful in terms of brain power, and we had the University of the Western Cape (UWC) as our base for organising workshops. More than half of the members of the Committee went on to find positions at the Community Law Centre at UWC, and UWC became the engine room of committed thought about our new Constitution.

 

It was an active, engaged, scholarly life – not just waffle, not just slogans, not just fancy words. This was going to be our lifetime achievement, the achievement of our ancestors – the generation of people who’d gone before us in the struggle. How could we get a country – a country with deep values that were really meaningful for the lives of the people? Not just a territory with populations in it, divided into Bantustans and group areas and whites and blacks and Coloureds and Indians – a country, a united country, a single country? And how could we do so on the African continent when much of the world influenced by racist ideas, by Afro-pessimism, believing that democracy was not for Africa, that black people couldn’t rule, that tribalism would take over and personal ambition would be inevitable. We had to prove and disprove and re-prove to the people of our country, the people of the continent, the people of the world, to ourselves, that our beliefs were true, that democracy was for us.

 

A series of workshops were accordingly organised by the Centre for Development Studies and the Community Law Centre, working closely with the ANC Constitutional Committee.  All the ANC regions sent participants, and many progressive experts from different parts of the world joined us. Engaged South African scholars, thoughtful urban and rural activists and activist lawyers pooled ideas in a spirit of lively, open debate. These workshops dealt with matters such as whether to have a Constitutional Court, the electoral system, the regions, social and economic rights and affirmative action. And the topic on which we had the greatest number of workshops was that of property and land redistribution – land… land… land… My previous Oliver Tambo address at the University of Cape Town was on the subject of land. My focus here is on the constitution-making process itself and the series of major crises we had to overcome to arrive at our Constitution.

 

The challenge of constitution-making was to go deep into ourselves, to create a set of institutions and values that would honour all of those who believed in, who’d struggled and fought for the possibility of South Africa being a free and democratic country. This was serious business and we had to get it right. We had been very good at making the country ungovernable. Oh, we were smart at that. But governing, now that was another whole thing altogether. How would we structure government? What strategies in particular should we adopt? We were used to being the opposition – challenging, destroying. For some people, in fact, it was so much part and parcel of their psyches to oppose that they continued to do so even when we were making progress in building something new. They were always against, against, against. Yet many of us were longing to heal, to build, to construct, to see and taste the fruits of the freedom we’d been fighting for for so long.

 

There were things we knew nothing about. Should we have a Constitutional Court? What kind of electoral system should we have? Should socioeconomic rights be enforceable as constitutional rights by judges? How to organise the regions? There were powerful moves to divide South Africa into little Cantons ­– upmarket white Bishopscourt would be in one Canton and disadvantaged black Langa would be in another, and they would each have self-government… We had to understand the implications of all constitutional proposals.  Affirmative action, how did it work in Malaysia? In India? In the United States? We needed more information. How could we do this?

 

And our concern was always how to get the best constitutional system for our country.  It was definitely now how we could devise constitutional arrangements to maximise the chances of the ANC winning power at the first elections. On the contrary in at least two aspects we took decisions that we knew would reduce the possibilities of a massive ANC electoral victory. Both related to matters that rise lively debates today.  The first was to opt for a President chosen by Parliament and not by a direct vote. The second was largely to favour an electoral system based on Proportional Representation and not constituency representation. The issues of Presidential power and of PR are both very much in the news today, so our thinking at the time is worth mentioning.

 

Deciding between a Presidential or Prime-ministerial system

Already in Lusaka, we had been discussing whether we wanted a Presidential system or something more like a Prime Ministerial system. Should the head of the country be chosen directly by popular vote, as in the United States or in France now, or indirectly by Parliament? At first we opted for a directly elected President. We knew that Nelson Mandela was enormously popular and that he would sweep to power as President carrying the ANC into office.

 

But the more we thought about it, the more concerned we became.  We used to have a Governor General in the old days – sent by the British, representing the King or the Queen – who was called the supreme chief of all natives. Totally top down. Then we had had the traditional leaders under apartheid who had sided with the regime and become dictatorial towards the people. Top down. And in our struggle (underground political and military work by its very nature had had to be top-down. Now you put these three traditions together and you choose a President as head of state, you can say bye-bye to Parliament. We said, no – we wanted the President to be accountable to Parliament, not vice versa.

 

Finding the right electoral system  

Today many people question the use of PR and argue that Members of Parliament should be chosen in constituencies where they would be directly accountable to the local electorate. We used to have a secret ballot inside the ANC and the unions had ballots, but we knew nothing about electoral systems for a whole country. So we invited people from other countries, we invited experts from inside South Africa. People from each of the ANC regions came to the workshops and we collaborated with other university bodies in a very free and open way. We didn’t start off with any pre-determined view. I remember, we divided into three different sections and we looked at the single transferable vote, we looked at proportional representation, we looked at directly elected constituencies, which the whites had in South Africa, and each of the three groups came out with the same recommendation: proportional representation – with two important qualifications.  The first was that the PR party lists would be organised on both a national and a regional basis, so as to give the regions control of half the MPs. The second was that pure PR would be used for the first elections only where Parliament would become a Constituent Assembly to draft a new Constitution.

 

But the second round of elections would use a mixed system, like in Germany – where constituencies and PR are combined. You might be surprised to know there is nothing in the Constitution today that prevents that from happening. The Constitution says the electoral process must in general result in PR. At the local government level, we have wards and we have proportional representation. We don’t have to change the Constitution to have directly elected MPs. The Van Zyl Slabbert Commission on Electoral Reform (2003), which was quite broad-based, came up with some very interesting proposals for combining PR and directly elected MPs. They should be looked at on a cross-party basis.

 

The fact is that in rejecting the notion of using single member constituencies, the ANC knowingly forewent the possibilities of getting an 80 percent majority in the first Parliament with only 60 percent of the vote. Not only would that have been disastrous for the project of building national cohesion through an inclusive constitution-making project. It would have been inherently undemocratic. As our workshops had established, using a system of first-past-the-post in single member constituencies results in gross over-representation of the leading party. Thus in the UK, a party that secures 45 percent of the votes could end up with two thirds of the seats.

 

A Bill of Rights versus Group Rights

At CODESA we had two different concepts of South Africa – of what the country would be like and how we would get there. The South African government was saying: ‘We negotiators sitting round the table at Kempton Park must draft the Constitution and then put it to a referendum to get legitimacy.’

 

And the ANC was responding: ‘No, we have to have a Constituent Assembly elected by the whole nation. Our first great act of self-determination as an inclusive nation will be to choose the people who will decide what our Constitution should be.’

 

The regime answered: ‘No, with majority rule, we won’t stand a chance.’

And our response to that was: ‘We can agree in advance to certain basic principles of democracy and an open society that we want in the Constitution – not for our side, not for your side, but for the people of South Africa. These are things that every progressive country needs and we will agree to them in advance. And we will have elections by proportional representation to make sure that everybody can get into the Parliament that will draw up the Constitution, even the smallest groups. A two thirds majority will be required and we will create an independent Constitutional Court to ensure that the principles are agreed to.’

 

The regime wouldn’t agree to that. They said: ‘We are a nation of groups and we need power to be shared between three Presidents.’ They called that ‘consociational democracy’. So it would be Mandela for six months, De Klerk for six months and Buthelezi for six months, and the three of them would have to govern throughout by consensus. This would effectively have given the power of veto to each President, and instead of the Constitution being the doorway to transformation, it would have become the barrier to change. It would have been a total disaster. So that is why there was a breakdown. There were ethnically based group rights and power sharing on the one hand, and on the other, there was the Oliver Tambo vision of full equal citizenship for everybody and a Bill of Rights protecting all South Africans.

 

Third-force activity

The Constitution-making process turned out to be protracted and heavily contested. Outside our doors constant violence was being instigated or condoned by organs of the State. Third Force activity was rampant in various parts of the country. In KZN in the four years from 1990 to 1994, low-grade civil war between IFP (Inkatha Freedom Party) and ANC forces, took more lives than had been lost in the whole country through political violence in the eight decades from 1910 to 1990. There were bloody battles in the East Rand between MK (uMkhonto weSizwe) young lions and armed units of AZAPO (Azanian People’s Organisation) youth. The AWB (Afrikaner Weerstandsbeweging) crashed with an armoured car into the CODESA proceedings at the World Trade Centre at Kempton Park. IFP cohorts, armed with what they called cultural weapons, marched from hostels and created mayhem in nearby townships. People were thrown off trains. Fortunately, the Peace Accords brought people together in the communities. They played a vital role not only in pre-empting further violence but in bringing tens of thousands of people of most diverse backgrounds into a national participatory process of safe-guarding the endeavours being made at Kempton Park.

 

A period of breakdown

I’ll share a personal story that offers a glimpse of into how tense and complicated the inner workings of the negotiations were. It’s 1992 and the NEC is meeting. It’s actually amusing looking at this audience because for some of you 1992 feels like yesterday and maybe some of you weren’t even born then, or if you were, perhaps you were a little pikkie. But it’s 1992 and the NEC is meeting. I’m one of the members and right at the beginning of the meeting I propose that we vote on a formal motion introduced by myself and seconded by Dullah Omar that the ANC withdraw from the negotiations. Now there is a bit of a stare, because I’m seen as one of the most ‘pro-negotiations, pro-peace-with-the-enemy’ group. Once when speaking at a report-back meeting at Fort Hare I had said, ‘We have two groups in the ANC, those who see a trap in every suggestion made by the other side, and those who see an opportunity.’  I had argued for seeing and seizing opportunities and making the most of them.  And people had responded, ‘No, Comrade Albie, we don’t have two sides in the ANC, we speak with one voice.’ So I had been seen as the pro-opportunity guy, even though I had obliged critics by saying we must look at every proposal with two eyes, one looking for an opportunity and the other for a trap.

 

But now here at the NEC meeting I was saying we’ve got to withdraw. And all the comrades who had been very uncomfortable with the idea of negotiations to begin with, were lining up to cheer me on. Dullah and I were making the point that the government was not serious about change. ‘Our political prisoners are still on Robben Island or in other prisons – they have gone on hunger strikes and we are letting them down. The IFP are marching through the streets with what they call cultural weapons – machetes, spears, pangas, kieries with nails in them – streaming out of the hostels and murdering people in neighbouring communities. Until these things stop,’ I said, ‘we should withdraw from negotiations. We don’t say we’re withdrawing totally from the process, but only until they release all political prisoners, control the hostels and ban marches with lethal so-called cultural weapons. And we give them three easily achievable objectives as proof of good faith so that we can resume negotiations.’

 

It had been clear in our day-to-day negotiations that the other side were now playing, as they called it, ‘hard ball’. Minister of Justice Kobie Coetsee had reintroduced capital punishment unilaterally, knowing that the ANC was totally against it. Tertius Delport had been combative and obstructive at meetings. My experience as a lawyer had told me, there were moments when you were negotiating with the other side and getting nowhere, that you said, ‘See you in court’. This was the equivalent moment.

 

So immediately people rush up to the microphone: ‘No, we must carry on; we mustn’t lose this opportunity.’ Quite a few people support me. Tea break comes and there many comrades crowding around me. I’m not used to being a popular leading figure in the ANC. Usually, I’m one of the quiet ones. But now it’s, ‘Yeah, we support you Comrade Albie…’ But after the break Nelson Mandela says, ‘Comrade Albie, you’ve raised a very important issue. But I see that there are 15 people who have spoken against the resolution and eight in favour. Do you and Comrade Dullah still insist on putting the resolution to a vote? Can we not just take note of it for now?’

 

And Dullah goes up, ‘Comrade President, as a loyal member of the ANC I accept the suggestion from the President.’ And I go up, and I am a little cheekier than Dullah: ‘I don’t insist, I don’t desist,’ I say, ‘My intention was to insure that the matter be fully debated.’ Madiba noted that I had beaten a diplomatic retreat and added that this was not the right time to be seen to be breaking off the negotiations.

 

And indeed, the Boipatong massacre a couple of months later in June 1992 was so shocking, so violent that we knew that the moment to withdraw had come. There was lack of good faith on the other side. But we didn’t withdraw full stop; we withdrew until the political prisoners were released, until the marching with cultural weapons stopped, until the hostels were properly ring-fenced. And that turned out to be the moment when the central battle of the Constitution-making process was won – not around the table at CODESA but in the streets of South Africa. Responding to an ANC call for rolling mass action, hundreds of thousands of people went out into the streets. They were disciplined, they were organised. The world could see and South Africa could see that there was huge popular support for our position.

 

Splits opened up inside the ranks of what we now started calling ‘the government’ – we were softening the terminology a little. First they had been ‘the enemy’, then they had become ‘the regime’, now were ‘the government’, and later they were to be called ‘the other side’! And that was when serious negotiations truly began, both on substance and on process. Cyril Ramaphosa was astonishingly good – wise, thoughtful, very collegial and with a good sense of what was going on. And from the other side, Roelf Meyer emerged as a thoughtful and equally hardworking counterpart.

 

We have now got so used to the new South Africa as it is, that we argue about the efficacy of its functioning rather than its very existence. Yet how different it could have been. People today smile with incredulity when I tell them that the majority of speakers at CODESA supported the South African government line that insisted on tri-presidential power-sharing. Moreover, they shake their heads in disbelief when I inform them that there was equally strong support for the creation of an upper house that would give minority parties a veto over legislation that affected their specific socio-cultural and economic interests. And as far as process is concerned, my listeners can’t even imagine that the marvellous April 27^th elections to create the body that would draft the Constitution might never have taken place.

 

The Record of Understanding agreed to by the ANC and the South African government later in 1992 resolved the drama in the following manner: To begin with, democratic elections on a national common voters’ roll covering the whole of South Africa would be held to choose the members of a non-racial Parliament; second, this Parliament would have the double task of general law-making as well as the specific function of drafting a new Constitution; third, it would be elected by proportional representation to ensure that it was fully inclusive; fourth, it would take decisions by two-thirds majority; fifth, the new Constitution would have to comply with broad Principles agreed to by the negotiators at Kempton Park; finally, a Constitutional Court would be created to certify that the Principles had in fact been complied with. The Record of Understanding led to the resumption of negotiations. We dropped the term ‘CODESA’ and replaced it with the description ‘multi-party negotiating process’ (MPNP).

 

Yet, although the central drama of the Constitution had been resolved, we still faced several other crises that threatened to derail the whole project. One of these was the question of sunset clauses and the creation of a government of national unity – and it threatened to split the ANC in half.

 

Crisis over the government of national unity

The last traces of group rights lingered on in the demand from the other side for a government of national unity that would last for up to first five years after the democratic elections. The two positions inside the ANC were reflected in a famous polemic between Joe Slovo and Pallo Jordan. Joe, who had argued for ‘no middle road’ in the 1960s, was now in effect saying that we should take a middle road – we’re going to get the vote, we’re going to get democracy, and then after a maximum of five years we can move the country forward socially and economically without impediment. Pallo answered that we might opt for a coalition government if it would be good for the country, but we couldn’t have one forced on us by the Constitution. That would be a denial of self-determination from the very beginning.

 

And here I’d like to introduce a second personal story. It’s late 1992 or early 1993 and the full NEC is meeting in the Johannesburger Hotel. Journalists are crowded outside impatient to find out which way the vote would go and speculating about whether the ANC could survive the division. The momentous debate begins. Some speakers support Joe’s positions; other back Pallo. And suddenly I think I’ve got the answer. ‘I’ve got the answer!’ I say to myself. I put up my hand and a certain Jacob Zuma, who was the scribe, notes my desire to speak. ‘Comrade Albie, I’ve seen your hand.’ Each of us has been given two minutes to speak and I am number 54. This is really democracy in action. And I am calculating; if we get through so many an hour and we have a break for lunch and we finish at six o’clock, I should be on by half-past five. I’ve got the answer, I’ve got the answer… And then it comes to five o’clock and Mandela announces: ‘Would the comrades mind – there is an important delegation – could we end a little earlier?’ We don’t mind, and the guillotine comes down just before my turn to speak.

 

It was the best thing that could have happened. After a good sleep, everybody refreshed, I was first speaker the next morning. The NEC was dividing almost exactly 50/50, and I felt that there was a way to get unity on the issue of having a Government of National Unity: ‘Comrades, we look at a Government of National Unity as a trap for us, but what if we see it as an opportunity? Let us go to elections asking for a mandate from the people that will be binding on the new government. And if we have De Klerk and the others in government we can control them more easily than if they are outside creating mayhem. That’s just for five years and after that it falls away. So instead of just going into the elections only on a platform dealing with the kind of Constitution we want, we go to the electorate with a programme of social and economic reconstruction. Then we can call it a Government of National Unity and Reconstruction.’

 

There is immediate support for the proposal and a certain Professor Kader Asmal gets up afterwards and says, ‘Would Comrade Albie agree if we added the word “development” so that it would be a Reconstruction and Development Programme [RDP]?’ And I said, ‘Of course.’ So that was the unexpected manner in which the RDP came into existence as a product of the constitutional debate. It is worth stressing that, contrary to certain assertions today that the primary concern of the ANC negotiators was to do a deal with big business, our central motivation at the time was to have a government that was committed to reconstruction and development.

 

I am revealing some little known aspects events that I personally took part in. Others could and hopefully will tell stories of their own experiences. Many people made contributions – and not only members of the ANC. There were men and women in other organisations, some quite hostile to the ANC, who contributed with with ideas and passion to the freedom struggle – people from the Unity Movement, AZAPO, the PAC. They ranged widely from Black Consciousness groups to the Black Sash. John Harris from the Liberal Party was hanged. Many individuals and groupings, trade unionists, women’s groups, faith and community organisations, sporting bodies, artists, writers and progressive professionals all contributed – and all deserve to be honoured.

 

The assassination of Chris Hani

On 10 April 1993 South African Communist Party Secretary-General Chris Hani was assassinated as he returned home from a job in Boksburg. We loved Chris. I used to meet with him in the underground – although, ironically, ‘the underground’ was actually overground, out in the open on the slopes of Table Mountain in Cape Town. His wife Limpho and the children stayed with me in Maputo after commandos had gone to try and kill them in Maseru. Chris was really very close – a wonderful, wonderful person. And now we thought the country was going to explode. But disaster was averted by getting a clear date for the country’s first democratic elections. We urged the people to focus on the vote and not be provoked by the racists who want to precipitate a racial bloodbath. It was through the vote that the people could get the things that Chris had been fighting for.

 

Amnesty

The next crisis did not flare up in public but was potentially extremely serious. Recently, in the course of working on a film about the making of the Constitution, I learnt that at all crucial moments there had been 40 000 armed white soldiers waiting for the command from General Constand Viljoen to take over the negotiation process. Half of these were in the South Africa Defence Force and the other half belonged to the military Reserve. What I was told at the time was that a number of generals in the army and the police had felt betrayed by De Klerk. He had reportedly promised them that there would be a general amnesty clause in the Constitution that would protect them against prosecution for actions they had undertaken in the course of their duties during the apartheid era. But when the text of the Interim Constitution was signed by the negotiators and released to the public in late 1993, it turned out to be silent on the subject. The generals stated that they had defended the democratic process and would continue to do so. But it was asking too much of them to run the risk of being sent to jail in the new democracy for fulfilling the instructions of political leaders who would be in Parliament.

 

I was amongst those in the ANC who were totally against a general Amnesty. At the same time, the ANC NEC had decided to support the creation of a Truth Commission by the new democratic government to deal with all past violations of human rights from all sides of the conflict. This had been triggered by a report which the NEC had commissioned on the use of torture by ANC security operatives against captured enemy agents in camps in Angola during the liberation struggle. While on a brief trip to London, I received an urgent fax from ANC headquarters about the stance of the generals. I scribbled my response on the back of the fax. My proposal was to reject agreeing to a general amnesty, but instead to allow amnesties to be granted to individuals who acknowledged the truth about their involvement in past violations in the course of the conflict. An important qualification was that Parliament should be responsible for determining the modalities for granting these amnesties. This would leave it open to the new democratic Parliament to establish a Truth Commission which could grant amnesty to individuals who came forward and told the truth about what they had done.

 

One of the negotiators from the other side informed me recently that if the generals had realised that they would be obliged to testify in public to the TRC, when it eventually started functioning in 1996, they would never have agreed to the clause. But the fact is that when they saw the words ‘amnesty shall be granted’ in a post-amble which was introduced into the Constitution, they were satisfied. The crisis was averted.

 

Mutiny in Bophuthatswana

Then, in March 1994, there was a mutiny against Mangope in the so-called independent Republic of Bophuthatswana. Striking civil servants were demanding that the Mangope government introduce political reforms and adjust to the changing political tide in South Africa. The AWB came rushing in to support Mangope, and as we all saw on television, three AWB members were shot dead by a Bophuthatswana police officer while lying defenceless on the ground. It was ugly to see. But it was a pivotal point in South Africa. It turns out now that the aforementioned 40 000 armed white soldiers had been on top alert for a command from Constand Viljoen to intervene on the side of Mangope. Instead, the chaos induced by the AWB charge lasted about four days before Mangope bowed to pressure and agreed to allow participation in the upcoming elections. And then when he reversed his decision, SADF forces loyal to De Klerk responded by deposing him and restoring order. So if the attention-seeking AWB hadn’t impetuously gone in like that, who knows what might have happened. In a weird paradoxical way, they did South Africa a favour with their clumsy intervention.

 

Volkstaat

The last meeting I attended as a member of the NEC before we went out to campaign for the April 27 elections, had its own quiet drama. Mandela explained to us that although we had spent our lives fighting for a united South Africa, the ANC leadership had been required to consider special claims being made by a group he referred to as ‘right-wing Afrikaners’. Like Tambo, Madiba was always very correct in his terminology and never spoke about the ‘boere’. This grouping had reluctantly come to acknowledge that the bulk of South Africa would be governed as a united non-racial democracy. But they had claimed that, if extended to the whole country, this would extinguish forever their dream of Afrikaners having sovereign control over their own affairs. They insisted that a clause be put into the Constitution that would at least in principle recognise the possibility of a portion of the country achieving self-determination and independent status as an Afrikaner homeland (Volkstaat). Mandela explained that any such provision in the Constitution would have to be subject to three qualifications. The first was that only the new democratic parliament would have the power to establish the proposed Volkstaat. Second, the creation of such a state would have to have the support of the majority of people within in its boundaries. And third, it would have to be governed on a non-racial basis. He indicated that his negotiating team was convinced there was no area in South Africa that would have a majority in favour of a Volkstaat. The right-wing Afrikaners would learn and have to accept that no such region existed. But it would be better for the country if they discovered this for themselves than if we forced them to accept the extinction of their dream through the design of the Constitution. In those days we often quoted US President Lyndon B Johnson’s statement: ‘It’s probably better to have [them] inside the tent pissing out, than outside the tent pissing in.’ Mandela, of course, wouldn’t have used this saying.

 

The NEC could as a matter of principle rejected the proposal altogether. But we were persuaded that having this extremely odd provision in our Interim Constitution would save the country from significant strife at a time when we were doing everything in our power to achieve a peaceful transition to democracy. Moreover, it would give far-right Afrikaners a dignified route to enter into the democratic dispensation. As Mandela had predicted, the Volkstaat notion proved to be totally unfeasible in practice even though it continues to have a ghostly presence in Clause 235 of the final Constitution of 1996. And as Mandela had hoped, instead of remaining an outsider threatening to challenge the new constitutional order, Constand Viljoen set up the Freedom Front and became a distinctive figure in the new democratic Parliament.

 

IFP

The last crisis which could have scuttled the whole process related to the participation of the IFP. The fear was not simply that millions of their followers would not align themselves with our democratic transformation. It was that they were heavily armed, had been working closely with extreme right-wing elements in the South African security services and could declare war on the elections. At the beginning of CODESA, the IFP leadership had hoped to have an equal voice with the government and the ANC. Cyril Ramaphosa, however, had proposed that decisions be adopted on the basis, not of head counting, but of ‘sufficient consensus’ for the process to go ahead. Judges Schabot and Mahomed had been appointed to decide in each case whether or not such consensus existed. In one matter they had held that in spite of the IFP having voted against a resolution, the consensus achieved between the government, the ANC and the majority of other participants, had been sufficient for the process to move forward. The IFP had walked out and boycotted all proceedings since then. Now there was huge pressure on the IFP to take part in the elections. Intense last-minute negotiations took place, and on the eve of the elections, the IFP finally agreed to participate, but only if the Interim Constitution was amended in two respects. The first was that when the Constitutional Assembly drafted the final Constitution, the powers granted to the Provinces in the Interim Constitution would not be substantially reduced. The second related to ensuring enhanced recognition of the institution, status and role of traditional leaders, including the Zulu king. These amendments were made. Many of us will remember seeing on television functionaries of the Independent Electoral Commission (IEC) working through the night pasting 22-million strips of gummed paper to the national ballot papers and a further 22-million to the provincial ballot papers so that Prince Mangosuthu Buthelezi would be included. To this day, IFP representatives have a vocal presence in Parliament.

 

‘How can you speak about roses when our people are dying?’

I remember when my book The Soft Vengeance of a Freedom Fighter was being launched at the University of Cape Town in 1991, not long before the formal negotiation process started, a guy who’d come down from Durban said, ‘What’s this literature stuff? How can you speak about roses when our people are dying? Just yesterday in KwaMashu some young ANC people came back at the end of the day; they were so happy, they announced: we got four of them, they only got two of us. It is like a football match – killing and being killed,’ he said. This was what was happening all the time; people being pushed off trains –– it was called ‘black-on-black violence’, and we had no doubt that it was being coordinated and stimulated by a Third Force. Agents involved in government security were getting the weapons out and people were dying throughout the country – especially in KZN. More people perished in the years from 1990 to 1994 from political violence than in the decades from 1910 to 1990. In fact, if we hadn’t had Peace Accords through the length and breadth of South Africa, we wouldn’t have achieved a constitution. It took us six long years. Nowadays we take all of this for granted. We point quite correctly to the discrepancy between the ideals, the values, the basic foundations on the one hand and the lived reality on the other. But imagine if the foundations had been wrong. The foundations are right; it is the implementation that needs a lot of shaking up.

 

What did we achieve?

Looking back now, was it all in vain? Many people horrified by current political developments in South Africa are reflecting on negatively on the Constitution, some of them quite harshly. I think we increase the fallout when, instead of standing on the achievements of the past, we trample on them. We should be building on them. Far from The Constitution being the source of our problems, it provides the basic mechanism for dealing with them. It is important to understand its historical significance when it was adopted, but perhaps even more important to understand its yet untapped potential today. Invoking rather than denouncing the Constitution can help us to deal with issues of accountability, of corruption and of popular involvement in the making of the laws and rules by which people are governed.

 

Our generation, what did we achieve? We brought down apartheid. We destroyed the political and legal institutions created by colonialism and white supremacy in their South African form. There is so much that is rotten the state of South Africa today, but people who say that nothing has changed have no idea of what it was like then. You couldn’t have a meeting like this, you couldn’t walk in the streets the way you walk now, you couldn’t protest – you couldn’t even fall without getting into trouble with the law! Imagine a Fallist movement when you’re not even allowed to fall! Torture, banishment, books banned, everything banned. No vote, no rights, but also the daily insults. Separate queues, separate toilets, you couldn’t even go to the beach. It wasn’t just those little incidents of a normal intimate ordinary life, it was everything, everywhere. We’re living in another country now.

 

It wasn’t just about bringing down apartheid either; we had to reconstruct the institutions of our country. We had 14 departments of education, we had four or five armies fighting each other. They all had to be brought together. We had to create whole new regions and municipalities integrating everybody. It’s a huge achievement. Like in India after independence, they had to reconfigure the states to destroy the inherited feudal power of the rajahs and tackle the deeply entrenched rules of untouchability – another huge achievement. But our biggest achievement was to implant democracy, and the right to speak, to protest and to vote.

 

We used to be told: ‘One man, one vote – once. It’s not for Africa.’ But we’ve had elections over a period of 20 years now. In the last elections the ruling party lost power in several major metropoles, an outcome that, with better or worse grace, was accepted. Maybe that’s the biggest achievement of the movement to which I once belonged; accepting the outcome when the electorate in a number of key areas lost its enthusiasm and support for the organisation.

 

We take it for granted that there will be revelations by great investigative journalists every day sustaining the impetus of the free press and media environment. If the students call for the fall of fees, they can go to a news reporter and get information out there. People were banned before, newspapers were banned. Information just didn’t get out. We speak our minds in South Africa now – openly, sometimes brilliantly, sometimes insultingly, but we speak out. Our elections are free and fair, and we take it for granted.

 

We take it for granted that we have an independent judiciary. I am so, so, so proud of my colleagues at the Constitutional Court. People ask me: ‘Do you ever go there?’ My answer is: Yes, I do go there. And I am thrilled to see how well they are doing – and dismayed to see how well they are managing without me! Some people say the judges are over-reaching themselves, intruding unduly on Parliament. Others say, more persuasively I believe, that they are simply chiding Parliament when it is not doing what the Constitution requires it to do. In the Nkandla decision, for example, it wasn’t as though the Court was imposing its own view on Parliament about how it should function; it was reminding Parliament what the Constitution expected of them. And since that decision, Parliament has been revitalised. Suddenly it’s showing an energy, a brightness that wasn’t there before.

 

I’m mentioning these things not to say, ‘What’s everybody complaining about? We’re living in a wonderful world and we’ve got a great Constitution.’ Far from it. I’m saying that if we want further change, the way to get there is not to trample on the Constitution, but to stand on it – not to abuse the Constitution, but to use it. When you start tearing up the Constitution the outcome is not more democracy, more rights, more homes, more freedom; the result invariably is more autocracy, more stealing, more opportunism, more self-seeking.

 

I can’t use the word ‘integrity’ often enough. We got through very difficult times with common sense, honesty, integrity. That was the core of everything; it was the core of Oliver Tambo – his integrity. It was the honesty of his endeavour, of his values, of his style of work. He would be the last one to speak almost invariably. He was not a maneuverer or a manipulator. He was never interested in self-advancement. Rather, he was thoughtful and inspired and quiet and gentle all the way through, the most principled consensus-seeker I have ever known.

 

Let me end with another personal story. It was 1994, after the first elections and I had withdrawn from the NEC and active politics. We were getting our freedom. There were four of us lawyers who’d been on the NEC, and there could be only one Minister of Justice. Would it be Kader, would it Zola, would it be Dullah, would it be Albie? Had I spent my life fighting to worry about whether the phone would ring for me? For the first time in my life I imagined that maybe, just maybe, I could be a judge. I had never thought about it before. But to be a judge on the Constitutional Court defending the values we’d been fighting for – suddenly that seemed a most wonderful prospect. I’d been nominated, we’d had our interviews, but weeks and months go by without an announcement. And I’m waiting, and waiting, and waiting. Meanwhile, Adelaide Tambo has just been elected to Parliament and she is overwhelmed by the prospect of making what, in the unfortunate language of the time, was called her ‘maiden speech’. I’ve been friendly with her since our children played together in London, and she invites me to tea in her ebullient, friendly Adelaide way. ‘Comrade Albie,’ she says, and she’s wearing a dress with bold epaulettes and we are having tea at a posh hotel, and she orders cake, and I’m wondering, what’s this all about? And she says, ‘You know I’m in Parliament. I’m not used to being in Parliament and I need a speech-writer. Will you do it?’ I said, ‘Adelaide, I’ll happily do it. But you must write your own speech and I will help you with it, but it’s got to come from you.’ And I remember going to her office and her saying, ‘Looks at all these green books and blue books and white books, all these reports – I don’t know what to do with them.’ I just cleared her desk. ‘You don’t need this, you don’t need that, keep this…’ Then afterwards I went back to my own desk that was piled high with books and realised that it was a lot easier to clear her desk than my own.

 

Eventually she writes her own speech. She begins by saying, ‘It’s wonderful to be here in Parliament today; my only sadness is that my late husband Oliver…’ And I’m reading her words and I’m wondering what is she going to say next – that he didn’t become President of South Africa? But she says, ‘My only sorrow is that my late husband Oliver Tambo didn’t live to vote in a democratic South Africa.’

 

 

Multimedia

Click here to watch the video of Oliver Tambo Centenary Series, Part 3: The Constitution as a framework for Struggle on YouTube