Chapter 7 - Defining the process

Codesa's first plenary session boosted the chances of a speedy resolution to South Africa's conflict and of substantive negotiation towards democracy. By now, almost all political role-play and commentators had been convinced that negotiation would yield the best outcome. Unfortunately, this confidence was not bearing out in the country's economy. Inflation, an ongoing recession, increasing unemployment, and evidence of corruption all conspired against early economic recovery. To make matters worse, government expenditure had increased by 18 per cent and the budget deficit was growing, putting the NP government under even greater pressure.

Nonetheless, the government refused to allow this to dampen its spirits. In January 1992 De Klerk restructured Constitutional Development Services and upgraded it to a full stare department. He also appointed the head of the National Intelligence Service (NlS) Neil Barnard, to the new post of head of Constitutional Development Services. Tertius Delport was appointed Deputy-Minister of Constitutional Development and Planning and the chief government spokesperson at CODESA, where he went on to play in increasingly important role as a government negotiator. He would also be central to a controversy that brought about a deadlock at CODESA later on.

The ANC too felt it necessary to build on the success of CODESA, and planned a campaign in January 1992 to force the government to yield to the establishment of an interim government within six months and to a constituent assembly before the end of the year. The organization argued that codesa's success rendered the continued exis­tence of the Tricameral Parliament irrelevant.

The five working groups began their discussions on 20 January 1992. For the sake of efficiency and effectiveness, working groups sat for two days every week, and Parliament during the remaining three days.

CODESA soon effectively replaced Parliament as the most impor­tant site of political activity. One of its most extraordinary aspects was the range and seniority of the politicians it brought together, for it was not unusual to find government ministers, former leaders of the armed struggle, and Tricameral politicians swapping jokes over drinks or at a meal between working group meetings.

When Parliament reconvened on the second anniversary of De Klerk's historic 2 February speech, he was at pains to convince its members that CODESA had not replaced it. He argued that Parliament remained an important institution of authority and was needed to translate agreements reached at CODESA into legislation. However, he knew that the only significant legislation Parliament would be enacting could effectively render the legislators jobless.

The way in which CODESA arrived at its decisions set an important precedent, for it represented a significant departure from the way in which Parliament had operated before. Regrettably, even though the public was invited to make submissions on constitutional proposals, CODESA made little attempt to either educate the public about its work or to solicit seriously the views of important interest groups that otherwise may have made useful contributions." Nonetheless, the invitation did elicit responses from many quarters, including the media.

CODESA's progress led to a realignment of political forces and a general review of old strategies, a process that applied equally to the right wing. For the Conservative Party, not all its leaders supported the boycott of CODESA, thus bringing to the surface some of the tension already existing within the party." In early January there were already signs of a possible split, for some of the CP's leaders felt that it was important for the party to play a role in negotiations in order to pursue its objectives.

In an attempt to appease the right wing, the working group dealing with constitutional principles agreed to discuss the principle of self determination and its application in the South African situation. It was hoped, albeit in vain, that this would allay the concerns of the right wing and allow them to join the negotiations.

The NP was undergoing a review of its own strategies and policies as well. For this reason, its think-tank met late in March to consider what form of political alignment would ensure that the NP won sufficient support at a non-racial election. The plan was to form a new centrist party, and in early April 1992 De Klerk visited a number of black, coloured, and Indian communities to win support for the party. In other words, the party was conducting an election campaign and negotiating at the same time. In establishing itself as the major opposition to the ANC, the NP had to show to its constituency that it would not give in too easily to ANC demands, which presented a serious problem for the NP's negotiating strategy.

Separately, the DP was also considering these and similar issues. Since the DP was concerned with the defection of several of its leaders to the ANC, it was not surprising when DP MP Mike Tarr suggested that the party consider an alignment with the NP against the ANC.

The 17 March all-white referendum

On 24 January 1992 De Klerk publicly recommitted the government to a referendum to confirm the support of the white electorate. Later, on 20 February, he reported that this referendum would go ahead on 17 March as an answer to arguments by the CP that the NP did not represent white people. De Klerk was confident enough to promise that if he lost, he would dissolve the NP government and force an election. 18 The ANC was opposed to the referendum, but it did support the decision of the Management Committee to call on whites to take part in the referendum and to vote 'yes'. Parties resolved on 3 March that the likely dates for CODESA II were 9 to 16 April 1992. With these agreements came the realization that the establishment of a non-racial transitional executive council was possible, a likelihood that was celebrated in the media. However, the working groups were experiencing a sudden halt in progress, and by 9 March the Management Committee had to postpone the plenary beyond April 1992.

The referendum on 17 March proved to be an overwhelming victory for the NP, and its success confirmed that the majority of white people were in favour of a negotiated settlement. This had the effect of obliging all white political parties to re-examine and reposition themselves in the wider political terrain. For any political party to be able to compete effectively in a democracy, it would have to appeal to the black majority.

Even though it was meant to be a confirmation of work already done, the referendum did have an impact on the NP's approach in the negotiations:

'Coetsee's role changed noticeably after the referendum', says one WG1 [Working Group 1] participant. 'It was as if he had decided that government could not either get the decisions it wanted in the group, or scupper it. It was probably the size of the "yes" vote that did it. Had the result been narrower, we would probably have made more progress.' Asmal agrees: 'The refer­endum sent inappropriate signals to government. A week before, they were trying to resolve issues at Codesa. Thereafter, there was a perceptible change in attitude'.

In two important developments, a Gender Advisory Committee was established at the beginning of April to advise the Management Committee on the gender implications of the terms of reference and agreements of the working committees; and on 27 April a special subcommittee of the Management Committee recommended that traditional leaders be allowed special, but not equal, representation in the negotiations, accorded through four provincial delegations.

Levelling the playing field

Working Group 1 had to deal with all matters relating to the creation of a climate conducive to free and fair elections. A list of laws that stood in the way of a level electoral playing field was drawn up by Lawyers for Human Rights, and each item was considered for removal by the working group.

The continued existence of Umkhonto we Sizwe (MK) once again fuelled a row that threatened to stall the process. Gerrit Viljoen and Roelf Meyer warned that any political settlement depended on the ANC abandoning its armed struggle. Moreover, De Klerk warned that the NP would refuse to enter any transitional arrangement, including an interim government or joint control of the security forces, as long as the ANC retained an armed wing. The NP argued that Umkhonto we Sizwe was a 'private army' that should be disbanded and its arms handed over to the security forces. The ANC refused, insisting that MK would only be disbanded once an interim government had been installed. The row was generating a great deal of tension:

Mandela threatened mass action, and COSATU, for its part, threatened unprecedented general strikes if the installation of an interim government did not take place by June.

Meanwhile, the ANC and the NP continued to disagree on the need to restructure the South African Broadcasting Corporation (SABC) and its management. According to Kobie Coetsee, the NP did not regard this as a practical or necessary step towards providing neutral broadcasting. The ANC, on the other hand, felt that it was essential to level the playing field through such restructuring, as the present form of the SABC did not lend the confidence required for this purpose. On 30 March the NP finally relented, and agreed to the reorganization of the SABC.

At the end of March the NP had returned from its referendum triumphant and in an aggressive mood. It was now prepared to dig in its heels against the ANC's demands for the speedy installation of an interim government, which encouraged speculation that CODESA's second plenary session was likely to be delayed.

Controversy over MK continued unabated, despite the attention focused on the SABC. The NP linked the existence of MK to the delayed installation of an interim government. For although the government did not appear to regard MK as a security threat, it did regard as politically important, especially because of the public row between De Klerk and Mandela on the matter. The NP also related the existence of MK to the continuing violence, and to this extent threatened to veto agreement on a transitional constitution until political violence had been 'solved decisively'. The NP was keen to force the ANC to take some responsibility for ending the violence, which was a new precondition. To show its seriousness, the NP withheld its agreement to a code of conduct for the SADF for more than six months after the National Peace Accord had been signed.

To add to the negotiators' difficulties, John Hall of the National Peace Accord confirmed that violence was continuing unabated countrywide. The installation of the National Peace Accord had not had the desired effect, and the violence was becoming serious enough to threaten the negotiations.

Working Group 1 was accordingly asked to investigate ways of improving the situation. At the working group, Hernus Kriel tabled a document that berated the ANC for not committing itself to peaceful negotiations. 36 The document was an ill-fitting attempt to absolve the government of any responsibility for violence and to downplay the public outcry against the Trust Feed case, in which a police captain, Brian Mitchell, had been sentenced to death for orchestrating the murder of eleven people at Trust Feed in Natal. It was suggested at the time that Kriel had tabled the document at that time only to scupper the agreements that CODESA II was about to ratify.

In the final report of Working Group 1 to CODESA II, while all parties recommitted themselves to the National Peace Accord, they recommended that it should be revamped. They also argued that the successful implementation of the accord was fundamental to the creation of a climate for free political activity.

Interim government

Working Group 3 dealt with interim government, and was therefore regarded by many as the most important working group.

The end of January 1992 saw a fundamental shift in NP policy. It proposed the formation of an elected interim government and a non-racial parliament with an all-party cabinet. According to the NP Secretary-General, Stoffel van der Merwe, such an interim government would also replace CODESA and would be responsible for the nego­tiation of the final constitution. He went on to say:

One would then have a representative government within which the negotiations can take place. In other words - the necessity for Codesa to continue to exist would actually fall away. Parliament would then be an elected body which could act as a Constituent Assembly. This transitional government could discuss the future permanent constitution.

Then, depending on what was negotiated beforehand or depending on the circumstances at the time, I would say it would be wise if such a transitional government would submit the final constitution again to a referendum, and then one would have an election on a permanent basis.

Some leaders within the NP were critical of this apparent change of heart and complained that the NP was succumbing to the ANC's demands, reflecting new tensions within the NP. During the same period, Thabo Mbeki was asked whether the ANC had developed its vision of an interim government. He replied:

No, we are still very much in the process of discussion. Our national executive committee will meet later this week to deal with this question. But there are important elements to what the ANC has said so far.

We're saying that an interim government should be in place for no more than eighteen months. Whatever detailed arrangements we enter into, it would have to deal with both executive and legislative elements. (Clearly, there, you are not talking of a continuing tricameral parliament as a legislative authority. Codesa will have to come up with proposal on who the legislator should be as well as on the executive authority.

When we talk of an interim government of national unity, we visualise both the legislative and executive authorities being broadly representative of the various political forces in South Africa. The constitutional principles agreed at Codesa would be the political mandate of the interim government because everyone would have agreed that this is the kind of South Africa that we want to see in future. And therefore, even in the interim period, you would be governing the country in the direction of those principles. Therefore, the principles agreed at Codesa would have to override any element in the present constitution which is contrary to them. That is not too bad a framework from which to begin planning the detail.

Gerrit Viljoen explained the similarities and differences between the approaches of the NP and the ANC in this way:

Firstly, the Government accepts it will imply a meaningful change bringing about a change in rather than suspension or abolition of the constitution. Secondly, the shift would involve not only the executive, the government, but also the legislature, namely parliament. Thirdly, the existing constitution would apply the method of introducing such a transitional government with a transitional constitution: that means it will have to be brought about by a decision made by the present parliament.

The Government is providing an alternative ... to the concepts of constituent assembly and an interim government, as defined by the ANC. We believe that a transitional government... would be an acceptable forum to argue and negotiate a better alternative to a constituent assembly. While a constituent assembly as generally denned is supposed to be elected on a one-man-one-vote majoritarian basis - where the majority, once elected, will simply finalise the constitution - the approach of the Government is to ensure proper representation of minorities in decision-making.

Discussions between the two parties continued for several weeks. The NP pursued the notion of a coalition government, proposing a guaranteed minority representation in a second house of Parliament and a collegiate presidency. The ANC rejected the idea of a constitutionally guaranteed representation of the minority. However, ANC Secretary-General, Cyril Ramaphosa, confirmed that the ANC was not averse to a voluntary coalition even if the ANC won the majority of votes. Mbeki elaborated:

we are opposed to the proposal which the NP is making in regard to this matter: that such a coalition government should be constitutionally entrenched. It must be a political decision. A consequence of constitutionally compelling a coalition is that you write into that arrangement veto powers for the small parties. To ensure that minority parties are effectively part of government, decisions would have to be by consensus in a cabinet. This is giving veto powers to minority parties. We can't accept that.

The NP had been particularly astute in proposing an elected interim government. Since the ANC previously considered only the appoint­ment of one, rather than its election, it found the proposal hard to reject. The proposal also featured an interim constitution, as the intention of the NP, explained by Tertius Delport, was to secure agreement on a 'complete constitution, although imperfect'. This, it was hoped, would undermine the need for the ANC's demand for a constituent assembly. Even if a constituent assembly was established, it would do no more than amend the negotiated constitution. Until now, the ANC had never considered the need to negotiate a complete constitution in the period prior to the election of a constituent assembly.

This narrowed the differences between the ANC and the NP to three major areas: the NP's proposal for a collegiate presidency; the con­tinuation of the interim government for a period of up to ten years; and the constitutional protection of minorities which would in effect constitute a minority veto.

The IFP tabled its proposals on an interim government in early February. The proposals served to reveal its anxieties: like the NP, the IFP feared a 'constitutional leap in the dark'. It proposed 'A transitional government of reconciliation - broader based than Codesa is at present - constituted under the State President and responsible to Parliament under the existing Constitution, amended as to certain unentrenched clauses to make this legally possible. This government would encompass generally recognised political parties and organisations, the portfolios of Cabinet responsibility to be allocated in an equitable manner and in accordance with recommendations and selection structures agreed upon by such parties and organisations'.

The ANC proposed a two-stage interim government. In the first stage, it would 'level the playing field', and culminate in the election of a constituent assembly. In the second stage, a final constitution would be drafted. The interim government though would continue until after the adoption of the final constitution. The first phase would commence with agreement in CODESA on all issues leading to the establishment of a powerful interim government council, consisting of all participants in CODESA and possibly including other parties as well. The interim government would oversee two independent, non-partisan commissions, four multi-party committees, and the activities of the Tricameral Parliament, the cabinet (which would continue as it was), and all homeland governments.

The ANC envisaged an election for a 300 to 400 seat constituent assembly not more than six months after CODESA had reached agreement on the process. Parties that received 5 per cent or more of the vote would take seats on a proportional basis. The assembly would draft the new constitution within six to nine months of being constituted, and a two-thirds majority would have to take decisions on the constitution. This body would also act as an interim legislature, since the Tricameral Parliament would fall away once the assembly became operational. A multi-party interim cabinet would then be appointed.

The ANC also proposed to include what it referred to as 'sunset clauses' in a new constitution. This concept had been applied successfully at the Lancaster House talks in the Zimbabwe settlement. A sunset clause would be introduced principally to provide white people with some reassurance, and would lapse after a period of time. Examples of these sunset clauses included entrenched seats for whites and regulations inhibiting the complete overhaul of the public service. The ANC's proposal for the second stage of an elected interim government accorded with the views of the government and was close to those of both the DP and the IFP.

This convergence introduced a concern that CODESA was moving too fast, and indeed it was. The government had not yet finalized its constitutional proposals and was therefore not in a position to negotiate constitutional guarantees that would protect the interests of its constituency or the National Party. The IFP was equally unhappy at the thought of an early election. The comment in the Weekly Mail summed up the debate:

Cautious liberal voices are calling for constitutional negotiations to be slowed down and for the Convention for a Democratic South Africa (Codesa) to offer stronger resistance to the call for swift movement to an interim government. 'Slam brakes on that constitutional bulldozer', the Sunday Times proclaimed on the weekend arguing that CODESA is in a 'mad rush' to an interim government, 'even if it means leaving until later the task of establishing democratic safeguards'.

How ironic that such voices suddenly find themselves arguing for a prolongation of National Party rule. How absurd to argue that democracy is best served by slowing down the destruction of a minority, racist government. How contradictory, too, that these are the same voices that so frequently lament the long-term economic costs of this period of uncertainty.

The NP proposed the appointment of a series of 'transitional councils' for areas of government 'requiring special attention' during the preparatory phase of a transitional government. The proposals also laid down a framework for the second phase of the transitional government. Each of the transitional councils would consist of six members designated by the CODESA Management Committee and appointed by the President. There would be a maximum of 30 council members, requiring some individuals to serve on more than one council. All councils sitting together would constitute a joint transi­tional council and operate on the basis of consensus.

The ANC rejected these proposals. The basic objectives of the first phase of interim government were to level the political playing field and ensure free and fair elections, and Mbeki argued that the proposed councils would not achieve this. In terms of the government's formulation, all decisions required full consensus, which meant that council decisions would be few and far between. The NP's proposed terms of reference for the councils also specified that the councils would debate actions the government should take in the future, and so excluded immediate hands-on control. The ANC also opposed the requirement of a regionally based senate. Ultimately, the question of the reincorporation of the TBVC states had also not been resolved.

The proposal did reflect some important developments: for example, it allowed the NP to bring its ideas in line with the ANC's proposed two-phased transitional process. But they had highlighted the differences between the ANC and the NP. The ANC did not want an interim government contaminated with the responsibilities of an apartheid government. By taking some of the responsibility for government the ANC would also become accountable, which would allow the government to escape some of its own responsibilities. This was an attractive prospect for the NP, particularly if it occurred just before an election. Instead, the ANC's vision of an interim government was one in which the power to control was shared without the atten­dant responsibilities of governance.

The IFP also opposed the NP's proposals. According to Buthelezi, the ANC had to disband its military wing, the King and the KwaZulu government had to be afforded delegation status at CODESA, and KwaZulu had to be consulted on the work of the transitional councils. Agreement would also depend on how the question of self-governing territories was resolved.

The proposals revealed a dilemma facing the government. As Mac Maharaj pointed out, the NP faced the difficulty of changing its focus from 'the negotiation mode to the election mode'. The NP had just come out of a successful referendum, which had allowed it to consolidate its support base, stronger than before. The NP had a head-start over the other parties and was now continuing to electioneer.

On 6 April 1992 CODESA was beginning to flounder, and a critical point had been reached. For the third successive week parties failed to reach a compromise on the first stage of the political transition. While both the ANC and the NP agreed that the first phase of the transition should end in an election, agreement on the actual powers of the executive eluded the negotiators. The ANC proposed that an eight-person interim government council be appointed, the Tricameral Parliament merge into one chamber, and the council approve draft legislation before its being submitted to parliament and again before its being signed by the president. TBVC legislation should also be subject to the same approval. While executive authority would be vested in the president, he or she would only exercise such authority with the approval of the council. The council would have overall responsibility for all departments. In the event of a deadlock, the council should take its decisions by a two-thirds majority. Proclamations issued by the council should have the same force as an Act of Parliament.

The responding submission from the government proposed the establishment of 'preparatory' or 'transitional' councils that would have no more than advisory powers. The government argued that the ANC's proposals would result in two governments governing the country at the same time. Until it was constitutionally or legally possible, a proper interim government could only be established after an election, since the government was not prepared to relinquish any power until it was voted out.

To break the deadlock, a Technical Committee of 11 members was established on 7 April. At the same time, bilateral meetings between the ANC and the NP were stepped up to find ways to bridge the divide. Jacob Zuma and Valli Moosa attended these meetings for the ANC, and Roelf Meyer and Tertius Delport for the NP. The Technical Committee recommended that a transitional executive council representing all CODESA parties be established for the primary purpose of levelling the political playing field. Several six-member subcouncils dealing with defence and law and order, regional and local government, and finance would back up the council. In addition, there should be independent election and media commissions. However, the critical question of the council's relation to the existing executive was not denned. The committee was also not able to recommend whether the council should take decisions by total consensus, as proposed by government, or by 'sufficient consensus'.

In a surprise move on 11 May, the IFP confirmed its support for an elected constitution-making body. And before the day was over, in another positive development Working Group 3 reported agreement on all issues that it had been assigned and accordingly produced its final report for ratification by CODESA II. Agreements were reached on all aspects of the structure of the transitional executive council. It would operate alongside, and in some instances oversee, government. The activities of the structure were circumscribed by the requirement that it function only to level the political playing field before the installation of a new, elected interim government.

The importance of the agreement was its resolution of the decision-making process in the transitional executive council. It was agreed that the transitional executive council would take decisions by consensus, and failing which, by a majority of 80 per cent of the nineteen members. It was further agreed that all security forces should be placed under the joint control of an interim government and that the electronic media be regulated by an independent body.

A constitution-making body

Working Group 2 was mandated to propose a constitution-making body and the constitutional principles to be applied in the final constitution. Progress was chalked up easily, and early agreement was reached on the principle that a new South Africa would be non-racial, democratic, and non-sexist. It also produced initial agreements on other constitutional principles. It was not surprising that in February 1992 the ANC argued that sufficient progress had been made, constituting a major breakthrough. It seemed possible to complete CODESA's work within the next six weeks. The government, however, did not share this optimism.

On 18 February 1992 the ANC confirmed its agreement to CODESA's prescribing the status of regional government under a new constitution. In March it was agreed that 'a new constitution should provide for effective democratic participation of minority political parties consistent with democracy'. The qualification was that the principle did not imply simple majoritarianism or minority veto powers. It was also at this time that the ANC's Constitutional Committee released a discussion document entitled Ten Proposed Regions for a United South Africa, outlining the organization's thinking on the importance of a decentralized system of government.

Another issue that was gaining prominence was the future of the public service. De Klerk argued in support of job and pension security for public servants during his referendum campaign. At the same time, Mandela too went out of his way to reassure white public servants that their future under a non-radal government was safe. Mandela was aware of the fears among whites, and he promised that no official would lose out financially while the public service was being democratized.

For white South Africa, the referendum was their moment of truth, but for the NP, it represented the transition. Business Day observed that:

'Agreement on transitional government was always going to be a critical point in the negotiation process. Almost by definition, it is the point at which the NP, which has ruled SA alone for the last 44 years, hands over a share of that power to others'.

It was difficult for the NP to take a leap into the unknown and accept formal power-sharing in the initial interim phase, especially after the referendum.

Just as seemingly intractable differences were beginning to cast a depressing shadow of gloom over the World Trade Centre, 30 March saw a dramatic turn of events. It was agreed that CODESA II would be convened on 15 and 16 May to bind parties to substantive agreements on an interim government and elections for a constitution-making body. The dates set by the Management Committee were designed to put pressure on the parties to conclude their agreements.

On the same day, the NP government tabled proposals on a constitution-making body consisting of an elected bicameral transi­tional parliament acting under the transitional constitution. It was this transitional parliament that would also be responsible for drafting the new constitution. The principle divide between the ANC and the NP remained the ANC's objection to a regionally based senate with a veto over the decisions of the elected national assembly.

On 31 March the Management Committee recommended an addendum be attached to the Declaration of Intent adopted at CODESA I. According to the chairperson of the Management Committee, Pravin Gordhan, There was general consensus that the declaration leaves the question of a unitary or federal system of government open'. This was the very reason the IFP refused to sign the Declaration of Intent at CODESA I.

On the same day the ANC proposed a 400 member constituent assembly to draw up a constitution within a four-month period. The ANC argued that all South Africans over the age of 18, including those in the TBVC states, should be entitled to vote. Should the constituent assembly not be able to complete its work within the time-frame, it should dissolve and new elections be held, which would prevent any party from unreasonably delaying the process of writing the new constitution. A two-thirds majority should arrive at decisions in the assembly.

The NP responded by arguing that it urgently wanted an interim government of national unity in place. However, such a government and the final constitution had to be based on power-sharing to achieve stability and economic growth. Any deviation from this model would oblige the NP to seek a renewed mandate in a referendum of white voters. Regarding the TBVC states, the NP argued that it could not force reincorporation, as they were independent. The strongest criticism of the ANC proposals came from Tertius Delport. His complaint was that: In practice, their proposals would mean that legislative authority would be vested in a Constituent Assembly, which would not be subject to any constitutional constraints. What would the consequences of this be when it comes to the acceptance of a new constitution? ... The constitutional vacuum in which the Constituent Assembly would function, would make it possible for the majority to disregard minority wishes. The majority, therefore, would not have to consider proposals by the minority and would function as an authoritarian regime without the need for any agreement, at any time, on a new constitution.

Whereas legislative authority would be vested in this body, nothing in fact would stop the Assembly from passing a law perpetuating its own life span. The body would, in other words, have the power to consolidate its own position in an authoritarian manner. The government cannot but conclude that the ANC proposals lay the foundation for an absolute usurpation of power and authoritarian government.

Despite general confidence in the process, a range of factors seemed to conspire and militate against the possibility of a successful outcome at the plenary. Judging from the statements made by each party, it appeared as if they had almost expected the plenary to fail, and were already beginning to lay the blame on each other.

On 14 April the ANC accused the government of'intransigence'. According to Valli Moosa, the success of CODESA II depended on agreements being reached on a 'shopping list' often items. These items included the establishment of an elected constitution-making body, the decisions of which could not be vetoed by any other body; mechanisms to ensure that elections would be free and fair; a general amnesty for exiles and political prisoners (as opposed to the temporary indemnity granted to exiles so far) as part of the creation of an appropriate climate for the installation of democracy; the scrapping of all legislation impeding free political activity; the passage of a general law guaranteeing basic civil rights to all during the transition; assurances that the security forces would not interfere with free political activity (this included joint multi-party control); a moratorium on unilateral restructuring in the socio-economic, foreign relations, security, and political spheres; impartial control of state-owned media; overall arrangements for the initial phase of an interim government; and the restoration of South African citizenship to the approximately 10 million citizens of the TBVC states to enable them to participate fully in the political process.

The anxiety of the negotiators was not unfounded, for the concern that agreements on the outstanding issues would not be finalized seemed more and more well-founded. The editorial in the Star on 22 April rightly pointed out:

The second plenary session of CODESA - or Codesa II - is less than three weeks away. Unlike Codesa I, Codesa II will be more than a ceremonial occasion marking a formal commitment by the contracting parties to negotiate a settlement.

When the 19 parties convene for Codesa II on May 15 and 16, South Africans will want to hear more than platitudes. They will want to know what progress has been made since Codesa I met last December. The success or failure of Codesa's working committees - set up to resolve differences and chart the path ahead - will be judged by the agreements they hammer out.

On 26 April the ANC proposed the creation of an independent constitutional panel to ensure that the constitutional principles agreed at CODESA would be enshrined in the final constitution. This was an adaptation of a suggestion originally made by the DP as an attempt to satisfy the demand by Inkatha that the constitution be finalized before a new government came into being.

On 28 April 1992, Working Group 2 produced a far more promising report that many regarded as a breakthrough. It was proposed that CODESA decide on general constitutional principles and agree to an interim constitution which would provide for a single-chambered, directly elected constitution-making body. This body would also act as an interim legislature. Regional power formed an important part of the proposal: decisions on matters relating to regional structures would require a special majority of the regional representatives and a special majority of all the delegates in the national assembly.

The NP was more than satisfied with this and temporarily shelved its own plans in favour of these proposals. Its strategy was to try to flesh out the interim constitution proposals to such an extent that the constitution-making body would only have to amend them. The expectation was that CODESA II would establish another working group to draft the interim constitution and be confirmed by a CODESA III. On May 4 a special task group of CODESA unanimously recommended that the TBVC states be reincorporated after testing the will of their citizens: casting their votes in the elections would be considered an adequate test. This too was hailed as a major breakthrough.

However, by 8 May, a week short of the scheduled plenary, prospects for agreement again began to look bleak. The ANC and NP were in a deadlock on the composition of the constitution-making body and the power of a transitional executive appointed by CODESA. Bilateral discussions between the NP and the ANC failed to breach the divide. The ANC insisted that the constitution-making body should be a single chamber body, while the NP was adamant that the option of a second chamber should be kept open. The NP argued that the second house would be where minorities would exercise their power to check the influence of the majority in the first house. This dispute related to the majority required for the adoption of the final constitution. The NP wanted to pitch this percentage higher than that which it believed the ANC could obtain, so that the minority parties would effectively hold a veto over ANC decisions. The debate was whether a two-thirds or a three-quarter majority should be required to adopt the new constitution. The negotiators could also not agree on whether the powers of regional and local government should be entrenched in an interim constitution.

Despite the deadlock, both the NP and the ANC were confident that the first phase of the interim government could be in place by August 1992. On 13 May agreement was reached on the question of regionalism and a two-chambered interim legislature cum constitution-making body. In effect, all adults would have two votes, one for a regional representative, and one for a national representative. This clause was to be entrenched, and those drafting a new constitution would have no alternative but to include it in a new constitution. There was still no agreement, however, on the composition of the legislature.

Tertius Delport was adamant that the issue was not about percen­tages but about how the constitution would be drafted. The NP insisted on a higher majority as a quid pro quo for softening its demand that the second chamber - a senate - had veto powers over the national assembly. For the ANC, the resolution of percentages was an essential part of a package of agreements that would otherwise be jeopardized. The ANC compromised on a number of issues in an attempt to secure agreement, including agreement that there would be two ballot papers reflecting a national and a regional vote; that the legislature (which would also operate as a constitution-making body) would sit in two chambers, the assembly and the senate; and that the bill of rights could only be amended by a 75 per cent majority.

On 14 May 1992, a day before the CODESA II plenary, the ANC found it necessary to call a meeting of the Patriotic Front and structures of the Mass Democratic Movement, to report on developments and consult on the resolution of the dispute. Eighty-five political and religious organizations, unions, student organizations, and interna­tional and diplomatic observers attended the meeting, which resolved that the ANC throw down the gauntlet and force the government to concede. The demands were a one-person-one-vote election on the basis of proportional representation; a two-thirds majority for the drafting of a constitution which could not be vetoed; and the immediate institution of an interim government with executive powers.

Later on that same day Tertius Delport tabled a new proposal. The NP was prepared to accept that the final constitution be adopted by a two-thirds majority, provided that a 75 per cent majority be required for the bill of rights; the principle of restructuring of government at local and regional level; and the principle of multi-party democracy which would include the effective protection of minorities. In addition, those provisions affecting regional government would be subject to a special majority of regional representatives. The ANC refused to accept.

Apart from these issues, it was still necessary for CODESA II to agree on the road ahead. For this purpose, the Management Committee convened at 4 p.m. on 14 May. It was reported that while Working Groups 1, 3, and 5 had successfully completed their assignments, Working Group 2 remained deadlocked. It was resolved that only those agreements reached would be tabled for adoption at the plenary, and in addition that no amendments to agreements would be entertained at the plenary. The Management Committee was also to seek a mandate from the plenary to establish a structure to take the outstanding tasks forward.

CODESA II

In the build-up to the plenary, negotiators were upbeat and remained cautiously confident. This period was both hectic and dramatic. The media played their part too as deadlock-breakthrough-deadlock messages caused confusion and anxiety among the public. Considering the spiralling violence and general political tension, a great deal of hope was invested in the proceedings unfolding in the gigantic shed-turned-negotiating-chamber called the World Trade Centre. The country and the world was focused on this plenary; but knowledge of this did not make it any easier for negotiators who were experiencing something akin to battle fatigue. Should the parties successfully break the deadlock, South Africa would be taking one giant leap forward towards democracy and peace.

To get to the World Trade Centre on the morning of 15 May it was necessary to run a gauntlet of demonstrators representing people who were either disenchanted with the process or making one demand or another. When the day started off for those who did manage to get some rest, the atmosphere in the World Trade Centre was already thick with tension and anticipation. Negotiators and staff were filled with a mixture of excitement and panic. While the administrative staff was engaged in a frenzied rush of preparation for the start of the country's most important political convention, journalists jostled for the best seats available and television cameras and photographers competed for the best angles. As for the negotiators, they scuttled nervously between caucuses and meetings to find ways to avert a potential national crisis.

The plenary was opened with a prayer, and the difficult task of chairing the meeting was left to Justices Ismail Mohamed and Piet Schabort. The morning session started at 10 a.m., an hour later than scheduled, only to be adjourned for a further five hours to allow Working Group 2 to seek a last minute compromise.

At this meeting, the NP insisted that a 70 per cent majority take decisions in a constituent assembly. In addition, issues relating to the bill of rights, regions, and the structure of government would require a 75 per cent majority. The ANC proposed a 66.7 per cent, or two-thirds, majority on all constitutional issues. However, after consulting other members of the Patriotic Front, the ANC compromised and argued for a 70 per cent majority for all decisions relating to the constitution and 75 per cent for the bill of rights, if the NP agreed that the senate be democratically elected and not appointed. The ANC also demanded that a referendum be catered for as a deadlock-breaking mechanism or if the constitution were not completed within a limited time-frame. This was not a mandated compromise, as the ANC's national executive was the only structure that could have authorized it. The compromise was a gamble based on the certainty that the NP would reject it, while it also served to show that the NP's primary intention was to build in a veto power. The gamble was worth the risk for the ANC, as the NP rejected the compromise.

It was on this negative note that the formal proceedings finally got under way at about 4 p.m. The IFP did sign the amended Declaration of Intent, but Zulu traditional leaders protesting against the exclusion of KwaZulu and demanding the full participation of the Zulu King handed in a petition to the meeting, and the Bophuthatswana government insisted that it could not be part of any interim government or elections in South Africa, notwithstanding its commitment to continuing negotia­tions. From this point onwards, the meeting quickly deteriorated into a verbal brawl. The NP accused the ANC of being intransigent and wanting to draft the final constitution on its own. In its turn, the ANC accused the NP government of bad faith and wanting to ensure that the special majorities it insisted upon would not allow the final constitution to be adopted. This would mean that the interim constitution would remain in place forever.

The deadlock brought to the fore a continuing mistrust, a factor which De Klerk confirmed in his contribution to the debate. It was at this point that the DP's Colin Eglin made a valiant effort to save the day. After lambasting both the ANC and the NP for allowing the dispute to spill onto the conference floor, he made an appeal to the two parties' leaders to intervene. He said, 'I don't believe the differences are so great that the De Klerks and Mandelas can't solve them'. The meeting was then adjourned.

Despite the fact that CODESA II did not ratify any agreements, the adjournment provided the relief that could not have come a moment too soon. The adjournment also provided a useful opportunity for Mandela and De Klerk to meet.

In view of the public row on the first day of CODESA II, the Management Committee met at 10:30 a.m. on 16 May to consider the way forward. It found that while CODESA II failed to live up to expectations, the process of negotiation itself was not in jeopardy. Accordingly, the Management Committee confirmed that it 'is extremely conscious of the fact that the participants in Codesa entered the negotiations process in the belief that it can take our country to a stable order. We have a responsibility to approach our task in such a manner that the confidence of the participants, and our people, in the negotiations process is reinforced'.

It was against this background that the mandate the Management Committee sought and obtained from the plenary was to be 'authorised to exercise such authority, as is necessary, to ensure that the objectives of the Declaration of Intent are attained; including the power to implement any agreement reached by Working Group 1 and also any other agreement falling within its mandate without summoning a plenary session of Codesa. That it also be given the power to increase the representation of individual parties / administrations / organisations on the Management Committee'."

Parties appeared more conciliatory on the second day of the plenary, almost as if they were ashamed of their public tantrums on the previous day. Even Mandela referred to CODESA as a family and said he would look back on CODESA II with fondness. The plenary finally agreed that the meeting adjourn to allow parties to refer the matter to their principals. The Management Committee was instructed to convene another plenary session to adopt agreements entered into later. However, the scheduling of such a plenary had to take into account that the current session of Parliament was scheduled to go into recess on 28 June.

The Daily Management Committee decided that all agreements had to be classified in terms of what was required. They would require elaboration, preparation, and implementation or referral to the tran­sitional executive council when this was established. It was also accepted that the agreements dealing with a climate for free political activity, in particular the future of the SABC and the question of political intimidation, had to be implemented with immediate effect.

The failure of CODESA II produced invaluable lessons, the main one being that process or procedural issues are sometimes as important as substantive matters. The dispute producing the deadlock manifested itself around the percentage required for the adoption of the constitution. While this was a procedural issue, it was nevertheless important enough to block substantive constitutional formulations from being approved in the final constitution. Political negotiations are rarely products of piecemeal agreements, and agreements are usually reached in terms of a package of proposals. Moreover, an agreement is never in place until the detail has been finalized. The idea is that while a party may not achieve every objective, the package of achievements must be such that the party is generally satisfied.

The ANC feared that it would be falling into a trap of living perpetually under the interim constitution only because the adoption of the final constitution was continuously vetoed. For the NP, however, an effective veto would mean that the party would maintain its relevance as a political force. As we have seen, there is nothing like a crisis to focus the minds of negotiators on the crucial issues at hand, and this manifested itself in two respects. Firstly, crises obliged parties that played a role in the Tricameral Parliament and the homelands to decide where their allegiances lay. Secondly, they obliged the NP to confirm dearly what its bottom-line was: that the NP would not concede to a settlement that did not guarantee it some political authority and power in the future. It insisted on a veto and therefore on its role in an interim government for a substantial period of time. Furthermore, the NP insisted that the principle of enforced power-sharing be enshrined in the final constitution. Evidently, its political strength in negotiating the interim constitution would be greater than when the final constitution was drafted.

The Soul of a Nation

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