To: Mr. F. W. De Klerk
State President of the Republic of South Africa
9th July, 1992
Dear Mr. De Klerk
I acknowledge receipt of your reply dated 2nd July, 1992.
It is unfortunate that your reply has not addressed the issues I raised in my memorandum of the 26th June, 1992. Instead, you deliberately obscure matters.
It appears that we are all agreed that South Africa faces a serious crisis. When it comes to charting a way out of the crisis, however, it is clear that there are hardly any points of convergence.
This is particularly so because you have chosen to elevate a number of peripheral issues to the status of "fundamental" ones, while relegating those of critical significance to a secondary place. The matter is made worse by the factual inaccuracies, distortions and blatant party political propaganda involved in the manner in which you raised these so-called fundamental issues.
To call for face-to-face talks in such a situation is entirely unacceptable. We would sit down to do no more than haggle about what should constitute the agenda of such talks, rather than the serious business of taking our country to a democracy and developing firm foundations for curbing and eliminating violence.
Reaffirmations about your commitment to a negotiated resolution to the South African conflict need to be supported by stating positions which offer the potential to break the deadlock.
You state that "the fundamental difference between the approach of the ANC and that of the government regarding the purpose of negotiations lies, on the one hand, in our commitment to constitutionality and a transitional government as soon as possible; and on the other hand, on the ANC's insistence on an unstructured and immediate transfer of power before a proper transitional constitution is negotiated." (Paragraph 3, Page 4)
This is indeed a novel description of the purpose of negotiations, to say nothing about its gross distortion and patent party political propaganda. The characterisation of your own position as "commitment to constitutionality and a transitional government as soon as possible" bears very little relationship to the purpose of negotiations, as set out in the Declaration of Intent we adopted together at Codesa I, namely;
"5. to set in motion the process of drawing up and establishing a constitution that will ensure, inter alia:
- that South Africa will be a united, democratic, non-racial and non-sexist state in which sovereign authority is exercised over the whole of its territory;
- that the Constitution will be the supreme law and that it will be guarded over by an independent, non-racial and impartial judiciary;
- that there will be a multi-party democracy with the right to form and join political parties and with regular elections on the basis of universal adult suffrage on a common voters roll; in general the basic electoral system shall be that of proportional representation;
- that there shall be a separation of powers between the legislature, executive and judiciary with appropriate checks and balances;
- that the diversity of languages, cultures and religions of the people of South Africa shall be acknowledged;
- that all shall enjoy universally accepted human rights, freedoms and civil liberties including freedom of religion, speech and assembly protected by an entrenched and justiciable Bill of Rights and a legal system that guarantees equality of all before the law."
Working Group 2 was specifically charged with determining the set of general constitutional principles consistent with and including those in the Declaration, as well as the form and content of the constitution making body/processes.
The question of a transitional government was the subject matter of one of the five working groups created at Codesa I. Unless the question of the constitution making body is dealt with as the primary focus of negotiations, issues relating to transitional arrangements are deprived of their proper relevance. Your insistence on elevating this to the central focus of negotiations betrays the positions your government has been taking and which lie at the heart of the crisis.
If there is to be a way out of this impasse then it is imperative that we isolate the question of transitional arrangements from that of the constitution making body. With regard to the constitution making body (Constituent Assembly), it is necessary that you pronounce yourselves in keeping with basic democratic principles. A democratic constitution will be fatally flawed if the body charged with drafting and adopting it, is itself undemocratic - be it in its composition or the way in which it is to function. Your response to our positions is therefore critical. It is the authority of the people, through their elected representatives, that gives a constitution its fundamental legitimacy. Our position is founded on the basic features of any democratic structure charged with the task of constitution making:
The constitution making body shall be sovereign;
The constitution making body shall be bound by the general constitutional principles agreed upon at Codesa, with the necessary checks to ensure that these are adhered to;
It shall be democratically elected on the basis of one-person-one vote in the context of multi-party democracy where each party would be represented in proportion to the votes gained;
It shall be single chambered and shall be not be subject to the veto or overseeing powers of any other body;
In the South African context there is the additional requirement that such a constitution making body constitute a unifying and legitimising process which must however not thwart the will of the overwhelming majority. Therefore, the constitution making body shall arrive at decisions by a two-thirds majority;
In order to ensure that regional differences, irrespective of whether they arise from ethnic factors or vested interests nurtured by the apartheid fragmentation of our country are fully accommodated, the Constituent Assembly shall;
- be composed of 50% delegates elected by means of a national list, and 50% elected on the basis of a regional list, both on proportional representation and one person one vote;
- In deciding on those aspects of the Constitution which deal with regional structures, their powers and duties, the Constituent Assembly would take decisions first by means of a two thirds majority of the entire Assembly and further that such a decision would require the endorsement of a two thirds majority of that half of the Constituent Assembly delegates who have been elected through the regional list.
So as to ensure that the transition is as expeditious as possible, there should be effective and timeous deadlock breaking mechanisms in the functioning of the constitution making body. The depth of the crisis facing our country is such that it is essential that there is a speedy transition to democracy. We cannot accept three years as a time frame for the Constituent Assembly to discharge its duties.
Your reply evades these questions. To the extent that it deals with any of them, what emerges is your opposition to such a sovereign and democratically elected constitution making body. The composition and function of this sovereign body is the acid test of your commitment to democracy.
You deliberately distort our proposals to constitute 'simple majoritarianism'. You falsely accuse us of wanting the Constituent Assembly to function in a constitutional void. At the same time you seek to pre-empt the work of the Constituent Assembly by the Codesa process.
Besides subjecting the work of the Constituent Assembly to the veto of a regionally elected Senate you seek to entrench federalism by subterfuge. This becomes clear by your requirement that the boundaries, powers, functions and form of regional government will have to be approved by the majority of the representatives from each electoral region that will be affected in each case.
It is necessary that there should be a clear understanding that all interim arrangements relating to the administration and governance of regions shall be such as not to pre-empt the decisions of the constitution making body. The question of the form of government, be it federal or unitary or whatever, is a matter that should be left to a democratically elected constitution making body.
The manner in which you have elevated the transitional arrangements to the central focus of negotiations betrays your pre-occupation with obtaining guarantees of a constitutionally entrenched role for the National Party, which you recognise will remain a minority party in the event of a democratic constitution.
You are more than aware that your allegation that the ANC insists on "an unstructured and an immediate transfer of power" bears no relation to the truth. Long before Codesa was established, the ANC proposed that there should be an Interim Government of National Unity so as to ensure that no party occupies the position of player and referee. This demand was first put in the Harare Declaration of 1989. It was not put forward as an end in itself. It was proposed as a means by which a democratically elected and sovereign Constituent Assembly would be brought into being for the purposes of drafting and adopting a democratic constitution for a united, non-racial and non-sexist South Africa.
In the agreements reached at Codesa with regards to transitional arrangements it is clearly stated in Paragraph 1.12 of the Report of Working Group 3 that "the following agreements were reached with regard to the first stage of the transition. These agreements and their implementation are dependent upon agreement being reached by Codesa in respect of the second stage of the transition, including an Interim Constitution, and general constitutional principles".
Indeed we were all parties to the insertion of this clause. That is to say, there appears to be agreement that none of us could walk blindfolded into the first stage of the transition if we could not define for ourselves and for the citizens of our country the central question as to the nature and functioning of a constitution making body. At the same time it is evidenced in the records of Working Group 3 that the ANC fully supports constitutional and legislative measures to ensure that there is no constitutional void.
And yet at the same time you have sought, by one means or another, to get an unconditional commitment from us to transitional arrangements without a clear agreement on the constitution making body. That is why we insist that the deadlock with regard to the constitution making body needs to be addressed by you.
It is a matter of public record that with regards to the Interim Government arrangements, it is the ANC which insisted on the idea of an Interim Government of National Unity in order to stress the need for an interim period that would be broadly inclusive. In pursuance of such inclusivity we proposed that all parties elected would be represented in the Interim Executive in proportion to their proven electoral support.
In the light of these proposals we cannot understand why your party persists in seeking to impose undemocratic solutions. All parties, including yours, are assured of a place in the future on the basis of proven electoral support. All parties have been offered a place in the Executive in the interim period. To carry such interim arrangements into a future constitution to be adopted by the Constituent Assembly is to deny the principle of majority rule and vest minority political parties with veto powers. Furthermore this would place minority parties in a conflictual situation with the majority and undermine the security minority parties seek.
Your reply dismisses our charges against your government for involvement in the violence by a bland denial and the assurance that where "elements in the state structures err" you will not hesitate to take appropriate measures. To say the least this is most unhelpful in resolving the crisis. [See Annexure 1; Government complicity in violence.] In the statement of the emergency session of the National Executive Committee of the ANC we drew attention to the fact that your control of state power allows you the space to deny and cover up the role of the NP government, its surrogates, the state security forces and the police role in fostering and fomenting violence. Attached hereto are two further annexures setting out the evidence of numerous instances which unmistakably point in this direction [Annexure 2: Involvement of Security Forces in the fomenting and escalation of violence; and Annexure 3: South African Government support for the IFP]. The evidence relates to both acts of omission and commission.
In this context you do yourself a disservice by questioning the integrity of the ANC when you yourself have not carried out the agreements reached more than a year ago with regard to measures aimed at curbing the violence. Your remarks in relation to hostels and dangerous weapons are disingenuous. You are unable to cite even one tangible act you have taken regarding the upgrading of hostels. You provocatively put razor wire around Phola Park, yet you have not fenced-in a single hostel.
No one can be expected to go along with your protestations of clean hands and individual errors as a basis for resolving the problem of violence. The possibilities of finding a solution are made even more difficult by your insistence on making the rivalry between the ANC and IFP the primary factor. Government and the IFP have always acted together. We have yet to see a single condemnation by you of the IFP even though there are numerous cases of leading members of the I FP planning, directing and instigating violence on a mass scale. On the contrary there are persistent reports of government protection of IFP warlords by your security forces and police.
We can only conclude that the manner in which you called for a meeting between the IFP, ANC and the Government is aimed at blocking rather than resolving the problem of violence. Unless and until you take concrete steps against your state agencies and surrogates, the NP will remain part of the problem rather than the solution. Annexure 3 briefly sets out the nature of the relationship between the IFP and the NP government.
There are several categories of demands with regard to violence requiring immediate action by your government.
It is completely unacceptable that you should dismiss our demand for specific steps relating to covert operations and state security forces by denying such actions. Despite the recommendations of the Goldstone Commission, Battalion 32 has not been withdrawn from internal deployment. Former Koevoet members are deployed as units of the South African Police.
Special Forces remain in existence. In case after case investigations concerning the involvement of members of the security forces have been found to be inadequate and tardy. Repression and harassment are extant in some of the self-governing states and so-called Independent States.
Unless you act publicly on these issues the crisis will deepen. In the light of your total denial we suggest as a first and immediate step, that you personally take over responsibility for the portfolios relating to the security forces and the police.
The agreements reached with the ANC more than a year ago and aimed at measures which will remove the hostels from being used as fortresses of violence have not been implemented.
To justify inaction even at this stage on whatever grounds is to turn a blind eye to the hundreds of deaths and thousands of injuries attributable to attacks by hostel inmates during the period in which you have failed to take practical steps. The fact that none of your answers explains why you have failed to repeal the law which you brought into being legalising the carrying of dangerous weapons can only be understood in terms your special relationship with the IFP.
The measures that you have taken enabling the Goldstone Commission to incorporate an international assessor and to attach an evaluator to the police investigation team into the Boipatong massacre have not addressed our demand for an international commission of inquiry and the international monitoring of violence. It is unacceptable that your police force, which is an alleged party to the violence, should be charged with the investigations.
None of your explanations with regard to the release of political prisoners are sufficient to explain the reality that there are still hundreds of political prisoners in your jails.
With regard to repressive legislation your government refuses to countenance the repeal of legislation currently on your statute books and which has been universally condemned as repressive, illiberal and not conducive to free political activity. No claims regarding the duty to govern can justify their continued existence on your statute books. Our demands specifically drew attention to additional laws passed during the last week of the recent session of your parliament, that drastically restrict the rights of citizens and restructure the criminal law, and that are already being implemented.
Furthermore, your government persists in its course in unilaterally restructuring the affairs of our country at a time when you are supposed to be negotiating a transition to a democratic order. These efforts actually amount to pre-empting and foreclosing on the rights and duties of a democratic order.
Other issues raised in your letter
In the face of the two critical issues which stand in the way of the transition to democracy, you have chosen to raise other issues as matters requiring urgent negotiations. Instead of addressing the critical issues with the statesmanship they require your entire letter takes the form of a party political reply. Perhaps this confusion on your side is understandable in the context of your being the head of the NP government. But it is inexcusable in the context of your persistent claims based on the right to govern and your position as State President.
Your charges against the ANC and its Allies are part of the baggage of apartheid ideology. We reject with contempt your propagandistic version of what is supposed to be happening inside the ANC and the Alliance. It has been the tradition of successive National Party regimes to try to discredit our Movement on the basis that you know black people better than black people know themselves.
With the right to peaceful demonstration goes our inherent right to determine its nature and aims. The dangers of further violence must be laid at the doors of those who are resisting change. Successive NP regimes have always sought to crush our mass campaigns by raising the spectre of violence and disruption as being inherent in our campaigns. This was so in the case of the Defiance Campaign of 1952, the Freedom Charter Campaign of 1955, the Alexander Bus Boycott of 1957, the numerous national stay aways, etc, including those of the recent period.
But the record is clear; wherever and whenever violence raised its head, it has been initiated and provoked by the government side. And in the more recent cases they include your surrogates.
Given the party political nature of your reply, we would urge you to desist from this course in addressing our demands. Find a way within yourself to recognise the gravity of the crisis. The starting point for this is that you stop deluding yourself that it is the ANC and its Allies programme of mass action which is the cause of the crisis. It would be a grave mistake if your government thinks that resorting to repression and the use of the military and police power that it commands can be a means of resolving the conflict. Find a way to address the demands we have placed before you with regards to the negotiations deadlock and those relating to the violence so that negotiations can become meaningful and be vested with the urgency that the situation requires. Failure to respond in this way can only exacerbate the crisis. You may succeed in delaying, but never in preventing, the transition of South Africa to a democracy.
Nelson R. Mandela
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