Whether the African National Congress (ANC) gets a two-thirds majority in the 2014 election or not, the F.W. de Klerk Foundation and other conservative critics will continue to wax lyrical about the dangers to the Constitution from an all too-powerful ANC.
Each and every time the former President F.W. de Klerk talks about the broken promises of the negotiated settlement and the spectre of the ANC's National Democratic Revolution (NDR), however, he reminds us of the crucial negotiating defeats suffered by the National Party by the time a new Constitution emerged in 1997.
These defeats were not, however, a failure to entrench power-sharing, such as that argued by some (principally Afrikaner) academics, or the simple loss of power that was inevitable as the National Party negotiated a democratic dispensation. More important, nuanced battles were not waged by the party as it pursued an elite settlement based on a wrongful belief that they would one day return to power: these included a more accountable electoral system, a reconfigured provincial makeup and the independence of the judiciary.
Criticisms of the NDR- and the concomitant undermining of the independent arms of the state by the ANC- are a foil for de Klerk and the former regime's attempts to hide the short-sightedness of their negotiating strategy, as well as an inability to grasp the changing context of South African politics.
A failure to look beyond short-term political goals led to a largely progressive constitutional settlement, but one subject to a worrying fragility in the face of what is now an increasingly powerful Executive branch of Government. The apparent failings of the current constitutional order decried by the FW de Klerk Foundation and others can be traced back to an incoherent approach to negotiation and the selective amnesia of the former ruling elite.
In recent months, Dave Steward, head of the F W de Klerk Foundation and formerly Chief of Staff for President de Klerk, and Professor Hermann Giliomee have engaged in a series of debates on the website of a Dutch Historical Journal, Maandblad Zuid-Afrika. Giliomee is keen to reiterate points made in his recent publication The Last Afrikaner Leaders, one of the only texts to analyse what exactly occurred within NP ranks in its final years of power (another being Christi van der Westhuizen's White Power and the Rise and Fall of the National Party).
Putting forth central tenets from this text, Giliomee argues President de Klerk missed vital opportunities to assert the Government's dominance over the ANC in the negotiations process and after September 1992 and the signing of the Record of Understanding (ROU) between the two parties, the ANC received a raft of concessions that weakened the Government from there on in. Steward, correctly in many respects, rebuffs Giliomee contention that de Klerk could have made greater use of the military in stamping out township violence and radical elements within the liberation movements as a way of asserting the regime's dominance and controlling the negotiations process.
As he rightfully points out (both in the article and conversations with this author recently), it simply wasn't possibly to pursue policies which had brought so much international- and domestic- condemnation towards South Africa in the 1980s. Ultimately Steward argues that what was achieved was a settlement that was largely acceptable to the white electorate and points to the NPs 20% vote share in 1994 as testament to that- the fact that no opposition party has achieved such a fate since this first democratic election is pointed.
Whilst Giliomee is right about the shift in relative power to the ANC after September 1992, Steward is correct in noting how little room for manoeuvre existed. Both, however, miss the key point of the period 1990-1994 and the possibilities open to the Government over the contours of a future settlement: the National Party attempted to win political battles predicated on staying an elite player in South African politics for decades to come.
Unable to formulate policies that would look beyond short-term political gain, they approached the negotiations field uncertain of the end point and even uncertain of their ostensible ‘bottom-lines'. These included elements such as a minority veto, ‘group' rights and a rotating ‘troika' presidency (to include, it was assumed, Chief Mangosuthu Buthelezi and the IFP, seen as a key third player by the Government early in the negotiating process).
As Rina Venter, Minister of Health in De Klerk's last cabinet has noted, after De Klerk's ground-breaking speech of 2nd February 1990, de Klerk and his party ‘did not have a plan strategically'. Ultimately, ‘De Klerk lost control over the process as the genie was let out of the bottle and ‘the way the process was managed allowed for a slow breaking down of control'.
All these policies- influenced, in part, by the consociational, power-sharing ideas of Arend Lijphart- were largely new to the NP and without real basis in the party's history, borne out of a need to present viable constitutional models which they hoped would delay the inevitable outcome in a democratic election- the control of the central state by the ANC.
Not even its most important negotiators- men such as Roelf Meyer, Dawid de Villiers or Leon Wessels- truly believed in these new NP planks. Indeed, Meyer would admit as much in an interview with me a few years ago regarding the party's approach to Federalism, noting the party's lack of any historical attachment to the concept. At various points in time de Klerk and his Cabinet appeared to mistakenly think UK and US Government support for such policies would be forthcoming, before seeing how clearly the international community were now lining up behind the ANC in the quest for a (quick) negotiated settlement.
The party's turn to pushing for stronger provincial governments thus came too late to pursue any meaningful co-operation on the issues with the only real like-minded party, the then-Democratic Party (the IFPs largely self-defeating in-out approach to the negotiations making them a difficult and problematic proponent- both practically and symbolically- of such proposals).
The DP was- in a touch of irony- pursuing many of the very same elements the De Klerk Foundation now wishes for, namely a more independent judiciary, a mixed-member constituency electoral system and a dual Executive (with a President and Prime Minister).
Whilst the ANC is sometimes accused of propagating a liberation myth that discounts the role of other groups in dismantling Apartheid, many former Nats are thus guilty of their own skewed version of the final years of white rule before 1994s historic election and the enshrining of a new constitutional order in 1997.
The NP's confused, haphazard approach to a negotiated settlement has allowed former President de Klerk and others to continually speak half-truths regarding what was- and wasn't- agreed during this period. There are very few broken promises, as very few concrete promises were made at all.
The ANC dominated the process and the 1996 Constitution was largely of their making. Indeed, whilst many within the NP hoped the future ANC Government would interpret agreements as the NP saw them, Rina Venter and others ‘pointed at [the] way [the] ANC will be able to interpret all principles to suit their agenda'. Given the National Party's own chequered past with separation of state and judiciary, the ANC hardly needed to look far regarding an ambivalent approach to independent institutions and the role of parliament as a watchdog on Executive overreach.
By fighting battles on group rights and a rotating presidency, the NP showed a failure to read the mood of the times and the prevailing consensus on a liberal democracy underpinned by proper checks and balances; the Government eventually came round to this line of thinking, but by then it had wasted crucial momentum.
While Steward and others might cast these earlier policies off as symptomatic of peace processes- 'look, the reality is that all parties at negotiating processes start with their opening positions and that was the start of the National Party's opening position...and the ANC by the same own token started with its opening position, so the reality of any genuine negotiations process is that all parties make compromises that are often very painful. The ANC did and so did the National Party. It didn't abandon the idea of Group Rights- it wanted some kind of power-sharing dispensation in the final constitution, but didn't succeed- but it did succeed in negotiating into the constitution fairly strong language and cultural rights''- they were still being bandied around up until mid-late 1992.
Indeed, Giliomee is right that much changed after the ROU, but perhaps more importantly the fundamental dynamics of the negotiations narrative and the powerful motif of 'The Third Force' took hold after the Boipatong Massacre, with the ANC rallying its international support around it and accusing De Klerk and his Government of complicity in the killings (as James Simpson has so succinctly shown in a recent piece in the Journal of Southern African Studies, 2012). De Klerk and his Government were put on the defensive and remained that way up until the 1994 election.
Thus, President de Klerk's recent utterings on the National Democratic Revolution (NDR) and his to and fro with ANC Deputy-President Cyril Ramaphosa over whether or not the NDR contravenes the spirit of the settlement of the 1990s is largely irrelevant: following the NPs fall from grace, its later absorption into the DA and de Klerk's move into political retirement, a focus on the apparent re-racialisation of South African society by the ANC is a useful way of ignoring the compromises and short-sightedness of negotiators - both NP and ANC, for that matter - during this crucial period in South African history.
For the hardliners in de Klerk's last cabinet, they saw the 1996 settlement as an abrogation of the ruling party's history and a waste of its crucial advantages as the de-jure rulers at the start of the transition process, bolstered by a loyal military and (somewhat) loyal security services.
For the more reform-minded within that Cabinet- figures such as de Klerk himself, Dawid de Villiers, Pik Botha- they were faced with a set of agreements that they couldn't quite comprehend but didn't fully abhor, wishful thinking set in that the ANC would strictly adhere to the tenets of vague promises and wording (It's worth noting how Roelf Meyer, the NPs Chief Negotiator at the time, became an ANC member in recent years).
This included the idea of decision-making in the much-feted Government of National Unity (GNU), where provision was made for the President to make decisions in a ‘consensus-seeking' manner. Whether a true consensus-seeking government would have been able to function is debatable, yet assuming that is what they were getting was naivety by the NP. This was just one of a raft of decisions the ruling party failed to truly comprehend, crossed their fingers and hoped for the best.
As a result, for de Klerk and others who haven't quite reconciled themselves to what exactly occurred during this period have created new rose-tinted meta-narratives of the South African transition that have turned into full blown myths. In the subsequent 20 years, it appears that some incredibly patchy memories have emerged.
In his 31st January 2014 speech to the De Klerk Foundation which presaged the verbal jousting with Ramaphosa a few months ago, the former President's criticises the process of nomination for the Judicial Services Commission (JSC) and the Constitutional Court and states that ‘the preponderance of politicians on the Judicial Services Commission and its increasing propensity to appoint judges on the basis of race...is threatening the professionalism and impartiality of the courts".
This is historical amnesia of the best sort: has the former President forgotten the initial haphazard deal on nominating judges to the Con Court , one the NPs Kobie Coetsee and the ANCs Dullah Omar cobbled together in a back-room bilateral only for those within the Democratic Party, elements of the liberal media and legal fraternity to cry foul until a reformulated, last-minute agreement emerged?
Similarly, De Klerk laments the lack of accountability in public representatives in the post-Apartheid era and points out, with merit, that "MPs are accountable to their political bosses and not to the electorate". He brings up the ANC-shelved Van Zyl Slabbert report as a model for electoral reform, yet does he also forget that the system of proportional representation that was chosen was one that both the ANC, and NP, favoured as a way of (effectively) ensuring party control over its candidates? It too was agreed between the two major parties, behind closed doors and with little input from others.
Both then - and now, even - figures from both parties are keen to point out that the PR-List system was necessary for a voting-illiterate electorate in a first democratic election: this was, and remains, paternalism of the highest sort. And whilst it was only meant to serve the first two elections, it was a decision that was punted down the road for a future day.
By the time the Van Zyl Slabbert Commission started its work, the National Party had disintegrated as a party. For the ANC, as they saw it, PR-List was a gift to the other parties and political minorities, as they would wipe the slate clean with a first-past-the-post system. For the NP, PR-List ensured an element of proportionality whilst simultaneously playing to its centralist, ruling party desires.
The Democratic Party proposed a mixed system to strike a balance between proportionality and accountability - in many respects in keeping with the later Van Zyl Slabbert Report - but were largely ignored. It is this position De Klerk and his Foundation now largely propound.
In many respects, the South African settlement revealed an essential truth of peace agreements the world over- too often, major parties dictate the terms of agreements based on short-term political calculations, devoid of long-term thinking.
The National Party did itself - and South Africa - a huge disservice by repeatedly crafting agreements predicated on the belief they would return to power after a short stint out of office. For this reason, they abandoned their short-lived flirtation with federalism, failed to truly see the potential for stronger provincial powers and put forward a negotiating team that largely agreed with the ANC perspective across the board.
Both the ANC and the National Party fundamentally misunderstood the ramifications of a revamped provincial system, with the former a latecomer to the idea of ‘regionalism' and the latter convinced it could win the Northern Cape province in the 1994 election. Thus the reincorporation of the Homelands and jump from four to nine provinces without real long-term thinking regarding their long-term functional ability; the institutional problems seen in province such as Limpopo and Eastern Cape are a repeated reminder of the failings of this rushed approach.
The added failure of the NP to align with the DP over the makeup of the judiciary and the non-politicisation of the Judicial Services Commission (JSC), was one of many smaller battles the party could and should have pursued. The mixed-electoral system that de Klerk is such a fan of now would have been another truly winnable battle during this period instead of impractical troika presidencies and legislating for ‘group rights'.
Whilst demarcating constituencies in time for the 1994 election would not have been feasible, a codified settlement on a new electoral system- in co-operation with the Democratic Party and civil society groups- would surely have been possible. It might not have curbed the problems of party control of MPs, but at least it would have given a greater degree of citizen input over their representatives in parliament (if, admittedly, favouring larger parties in the overall setup).
Ultimately, what emerged at the end of the negotiations period in the 1996 Constitution was undoubtedly a progressive, impressive basis for South African democratisation yet if de Klerk and others were truly worried about the ANCs commitment to multi-racial principles, and the independence of the judiciary and other institutions of the state in the post-Apartheid era, the opportune time for this was during Codesa and the Multi-Party talks, not twenty years into the new dispensation. Indeed, a true acknowledgement of the NPs failings in this regard might lessen the hypocrisy of such present-day criticisms.
The NDR has been part and parcel of ANC-speak for many years and should not come as a surprise for supporters - or critics - of the ruling party. How committed the ANC is to the NDR is anyone's guess - it is a motif continually popping up at convenient moments of tension and heightened internal debate within the movement.
It fits neatly with the ANCs perennial grappling with its own legacy from the negotiations period, seen in Jacob Zuma's failed attempts to have his ‘second transition' policy confirmed at the 2012 Policy Conference; eventually the term ‘second phase' was agreed upon, yet it too showed the problematic legacy of the 1990s both for the winners and losers of this particular period in South African history.
There were - and remain - many centrist, progressive voices within the ANC, and it is hoped these voices continue to dominate over those who decry the Constitution as an apparent block on transformation. With the parting of Trevor Manuel and Kgalema Motlanthe from the party after the election, it will be hoped that the progressive core remains part of the internal contestation for ideological dominance within the party.
The emergence of Julius Malema's Economic Freedom Fighters (EFF) and the breakaway of NUMSA from COSATU may well test whether the ANC's centre can hold. Will the ANC need to make concessions to the fledging EFF to neutralise its appeal and take back those who believe the party is beyond reform? Or will the EFF prove to be a temporary blip on the ANCs radar?
Whether the dynamics of the ANC could be fundamentally altered from the outside will become clearer in the coming weeks as the election results sink in. Beyond the official results, however, voter turnout and apathy will also point to the overall health of the ANC post-2014, as well as South Africa's democratic participation more broadly.
However, whilst de Klerk and his Foundation are welcome to - and should - probe ANC policy over employment, bureaucracy, race and the state, it is time to stop the fallacy that the ANC has abrogated fixed, grand agreements of the 1990s. The 1996 document is in large part an ANC document - it is one they crafted and affirmed and any ambiguity within it reveals the essential desire of both the ANC and NP to get to agreement, even if that meant leaving hard decisions for another day.
The spectre of violence and the motif of 'Civil War' put paid to an idea of a longer, perhaps more holistic approach to constitutional negotiations and a rethinking of the South African State. For former NP politicians such as De Klerk, however, the NDR is a convenient cloak for the failings of a negotiating strategy and approach that continues to haunt them in the New South Africa and their inability to seek progressive, long-term institutional reforms- for the right reasons- when it really mattered.
Jason Robinson is a third-year Irish Doctoral Candidate in History at St. Antony's College, University of Oxford. He is currently writing a thesis on small political parties and groupings in South Africa's transition, 1990-1997, as well as chapter on the Economic Freedom Fighters (EFF) for the forthcoming Jacana book on the 2014 election.
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