Reflections 30 years on from the start of CODESA - FW de Klerk

Core rights that non-ANC parties regarded as indispensible constitutional provisions have been eroded



The FW de Klerk Foundation decided to hold this webinar to mark the 30th anniversary year of the commencement of formal constitutional negotiations at CODESA. CODESA was an immensely important step in the transformation of South Africa and deserves to be studied and celebrated by everyone who values South Africa’s constitutional democracy.

31 years ago today - in my opening address to Parliament - I announced the steps that opened the way to CODESA. They included the unbanning of the ANC, the SACP and all the other prohibited organizations - and the imminent release of Nelson Mandela.

Throughout 1990 and most of 1991 the government met with the ANC and other parties in talks about talks. They dealt primarily with

- the provision of indemnity to revolutionary cadres who would be returning to South Africa to participate in the talks;

- the principle of amnesty;

- the nature of the constitutional talks;

- the suspension of the ANC’s armed struggle – and

- the problem of escalating violence that was arousing deep mutual suspicions between the principal parties.

These steps opened the way to the convening of the first meeting of CODESA on 20 December 1991. CODESA included 19 parties - which were judged to have significant support - as well as the South African government. The convention was chaired by Chief Justice Michael Corbett and met in the cavernous World Trade Centre adjacent to Jan Smuts Airport.

It was decided that decisions would be taken by ‘sufficient consensus’ which, in practice, required agreement by the National Party government and the ANC - and sometimes the Inkatha Freedom Party - parties that in the 1994 election won more than 93% of the vote.

The participating parties worked hard at preparatory meetings to reach agreement on a “Declaration of Intent” - which was intended to provide a broad framework for the constitutional deliberations. In fact, the Declaration already included the key elements of what would finally evolve into the 1996 constitution. It envisaged

- a united, democratic, non-racial and non-sexist state;

- a constitution that would be the supreme law and would be upheld by an independent, non-racial and impartial judiciary;

- a genuine constitutional democracy with separation of powers between the legislature, executive and judiciary;

- acknowledgement of South Africa’s diversity of languages, cultures and religions;

- the protection of universally accepted human rights, freedoms and civil liberties by an entrenched and justiciable Bill of Rights; and

- a legal system that would guarantee equality of all South Africans before the law.

This auspicious beginning was marred by a personal attack that Nelson Mandela launched against me at the end of the first day in response to my criticism of the ANC for having not complied with its obligations under the agreements we had reached in the run-up to CODESA. As would happen many times during the following two and a half years we succeeded in papering over deep divisions and in resuming our commitment to a negotiated settlement.

CODESA began its deliberations in five working groups in March 1992. The important and contentious discussions took place in Working Group 2 which dealt with constitutional issues, including the question of federalism and the manner in which the new constitution would be adopted.

The core disagreement centred on the manner in which the new constitution would be adopted. The minority parties insisted that all the parties at CODESA should first reach agreement on a new constitution - in terms of which the first election would be held. The ANC demanded that the election should first be held for a constituent assembly that would then draft the constitution. CODESA reached a compromise in terms of which it agreed to:

- a democratically elected transitional parliament that that would legislate during the interim period and also sit as a constitutional assembly that would write the final constitution; and

- an interim period during which there would be a multiparty executive and separation of powers between the executive, legislature and judiciary.

The negotiating parties resumed talks at CODESA 2 on 15 May. However, on 17 June CODESA 2 collapsed because of its failure to reach agreement on the percentages by which the final constitution would have to be adopted - and because of escalating violence - exacerbated by the massacre of 48 people in Boipatong on 23 June.

The real reason for the ANC’s withdrawal from CODESA may, in fact, have been pressure from the SACP and the left wing who believed that the Alliance had made too many concessions in the negotiations. What was emerging from the talks was the framework of a liberal constitutional democracy - and that is not at all what the left had in mind.

As a result, the ANC embarked on “rolling mass action” in pursuit of the so-called “Leipzig Option”. The idea was that if it could get enough people into the streets for long enough, the government would collapse - just as the East German regime had collapsed following mass demonstrations in Leipzig, only a few years earlier.

Thus began the so-called ‘winter of discontent’ with strikes, boycotts and hundreds of thousands of people in the streets of all our major cities. The country lurched from one crisis to another, culminating in the Bisho incident - which brought South Africa to the precipice of a national crisis.

The hotheads in the ANC Alliance wanted to launch similar marches against Ulundi and the capitals of other homelands - actions that might have fatally derailed a negotiated solution. More responsible elements - under the leadership of Nelson Mandela - reasserted their control and decided to return to the negotiations. Talks between the Government and the ANC were resumed and culminated on 26 September in the adoption of the Record of Understanding.

Although the ANC hailed the Record of Understanding as a great victory, in fact, it was not. The Government did, indeed, accept a number of ANC demands requiring IFP hostels to be fenced and banning the carrying of traditional weapons by IFP formations. However, these were not unreasonable and had already been discussed by the IFP and a visiting United Nations team.

Much more distasteful was the ANC demand that the Government should abandon the so-called Norgard principles and release all the remaining ANC prisoners regardless of the crimes - including necklace murders - they had committed. In return, the ANC, signed off on the agreements that had been reached at CODESA including the critically important principles that

- the final constitution would be drawn up within the framework of constitutional principles that would, in effect, be agreed by the minority parties;

- during the interim period there would be constitutional continuity;

- there would be a transitional government of national unity;

- the interim constitution would provide for regional governments; and

- there would be justiciable fundamental rights and freedoms.

This was by far the main content of the Record of Understanding and was a substantial victory for all those who supported constitutional democracy. The great pity is that the Record of Understanding was misunderstood by the IFP - which withdrew from the negotiations and did not return until eight days before the April, 1994 election.

Nevertheless, the Record of Understanding opened the way to the resumption of negotiations in March 1993 in the 26-party Multiparty Negotiating Forum. On 18 November the Forum approved the interim constitution - which was adopted by parliament on 21 December - opening the way to South Africa’s first fully inclusive non-racial elections on 27 April 1994.

13 days later, on 10 May 1994, I participated in President Mandela’s inauguration. The day marked the end of 342 years of white rule in southern Africa. Strangely, it also represented the culmination of everything that my colleagues and I had set out to achieve. It is seldom that a politician’s career reaches fulfilment with the loss of his own power.

However, I did not view the day in any way as a defeat. I regarded it as a victory for all South Africans. I believed firmly that I was not surrendering power to Nelson Mandela and the ANC: I was, instead, transferring power to a new non-racial constitution that would assure the security, well-being and freedom of all South Africans.

We thought that we had rid ourselves for once and all of the stigma of apartheid and white minority rule. We had jettisoned the Westminster system in terms of which a sovereign parliament could, and did, make any law it chose - and replaced it with a system in which the constitution and the rule of law - interpreted by independent courts - were supreme. We had moved from a system in which rights had been allocated unequally on the basis of race to a dispensation in which all South Africans would be equal before the law and would enjoy the full spectrum of human rights and freedoms that would be entrenched in a justiciable Bill of Rights.

And where are we now, 26 years later? On the positive side,

- we remain a free society.

- We have free political activity and regular elections.

- We have free media and robust organs of civil society.

- We still have a free market economy.

- Some of our institutions have performed well. Our courts have regularly struck down unconstitutional behavior by the executive and legislature. We had a fearless Public Protector

- Thuli Madonsela - who will be addressing this seminar later this morning.

These institutions, acting in concert, defeated the deadly threat that was posed to our constitutional democracy by State Capture - and hastened the demise of President Zuma.

These are all great achievements.

But as we all know - our constitutional democracy faces critical challenges.

- I believe that the root of these challenges lies in the contradiction between the constitution on the one hand and the dictates of the ANC’s National Democratic Revolution ideology on the other.

- The constitution calls on us to heal the divisions of the past - while the NDR is postulated on a continuing race-based revolutionary struggle;

- Most of the negotiating parties regarded the 1993 and 1996 constitutions as a solemn accord

-  while the ANC, by its own admission, viewed them as transitory arrangements - some of which could be dispensed with as soon as changes in the balance of forces permitted.

- The national accords were rooted in the requirement for independent courts and state institutions. However, the NDR required the democratic movement (i.e. the ANC) to strengthen its hold over the levers of state power - including “the public service, the security forces, the judiciary, parastatals, the public broadcaster and so on.”

- The Constitution required the courts to act without fear, favour or prejudice - but the ANC called for the “collective mindset of the judiciary” to be transformed “to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination.”

- The constitution entrenched non-racialism as a foundational value. However, the Constitutional Court, in Minister of Finance v Van Heerden, relegated it to a “long-term constitutional goal”. In 2014, then Deputy-President Ramaphosa insisted that “race will remain an issue until all echelons of our society are demographically representative.”

Of course, the ANC insists that it has “set out to implement both the letter and the spirit of the constitution, including such principles as multi-party democracy, the doctrine and practice of separation of powers in a constitutional state, fundamental human rights to all citizens, respect for the rights of linguistic, religious and cultural communities, and social equity” - but then adds the caveat that all this is “ within the context of correcting the historical injustices of apartheid”.

In other words, deviations from the letter and the spirit of the constitution and from fundamental human rights are permissible if they are required by the ANC’s NDR programmes “to correct the historical injustices of apartheid”.

This process has progressively eroded core rights that non-ANC parties regarded as indispensable pillars of the constitution that they had negotiated in good faith. They included non-racialism and the inter-related foundational rights of equality and human dignity; non-discrimination; language and cultural rights; the right to education in the language of one’s choice; and - of course - property rights.

The absence of non-racialism was at the heart of the injustice that characterized race relations before 1994 - and it threatens, once again, to become the issue on which South Africa’s brave non-racial constitutional venture might flounder. This has nothing to do with any wish to avoid the urgent need to improve the condition of the vast disadvantaged majority of the South African population. It has everything to do with the manner in which this process should be addressed.

Leading members of the government have said that they see the COVID crisis as an opportunity to implement the radical policies that they have advocated in the NDR and in its latest iteration - Radical Economic Transformation. As part of this process the ANC has introduced an Expropriation Bill that would seriously undermine property rights. It has also announced its intention to amend the constitution to make it possible to expropriate property without compensation.

Another example is the way in which the ANC Government is bringing race into aid programmes linked to COVID.

These initiatives would represent further potentially fatal blows to the great national accord that ultimately emerged from the CODESA process. This would be a catastrophe not only for all South Africans - but for conflicted parties all over the world searching for lasting negotiated peace settlements.

The solutions to great challenges of inequality, poverty and misgovernment that confront us lie in the faithful implementation of our constitution - and not in the revanchist racial agenda of the NDR.

All of us should return to the values on which the constitution was founded - and should find, once again, that remarkable spirit that enabled parties representing all South Africans to gather together at CODESA 30 years ago to hammer out an inclusive and non-racial blueprint for a more caring, a more equal and more just society.