Convention for a Democratic South Africa (CODESA)

Black Sash picketing outside CODESA 2 with security standing by, May 1992. www.africamediaonline.com

The Convention for a Democratic South Africa (CODESA): CODESA 2

On October 25 1991, ninety-two organisations that were united in their opposition to apartheid gathered in Durban to form the Patriotic Front. The Front deliberated over the negotiation process. During the two days of discussion the mechanism and technicalities of transition and a changeover of political leadership were clarified. At the end of the conference, all organisations agreed that an interim government was required to manage the transition. Because the National Party government had a vested interest, it was not deemed suitable to manage and monitor the transfer of power. Clear guidelines were put forward on the responsibilities of the interim government. That is, to take non-partisan control of the security forces, the electoral process, state media, and define areas of budget and finance, to allow international participation of South Africa in global affairs and to elect a constituent assembly based on a one-person-one-vote basis in a united South Africa, which would draft and adopt a democratic constitution.


Table of Contents
Introduction
Violence During CODESA 2
Pre-Working Groups and Concurrent Activity
Working Groups
Working group 1, 4 and 5
Working Group 3 and an Interim Government
Working Group 2: Constitutional Principles
CODESA 2 Plenary
The Aftermath of CODESA 2
ANC National Conference and Plans of Mass Action
Codesa Committee Meeting – 15 June 1992
Mass action and Boipatong Massacre on 17 June
Rumours of Police Involvement and ANC break off Multilateral Talks at Codesa and Bilateral Talks with Government
Exchange of Memoranda
Mass Action/Meetings and a UN envoy
Analysis
Endnotes

Introduction

After Codesa 1 had provided South Africans with hope for a negotiated solution at the end of 1991, 5 Working groups were formed on 20 January 1992 and began their work shortly thereafter. The first half of 1992 was characterized by various instances of violence, happening amidst negotiations. An all-white-referendum in March 1992 over the continuation of negotiations was to be a notable feature. Working Group activity continued up until the plenary of Codesa 2 on 15 May. Sticking points in the working groups were to eventually spill into the plenary. Particular disagreements revolved around Working Group 2 and 3, dealing with constitutional principles and an interim government respectively. Particularly important was the disagreement over the percentage needed to pass the final constitution, the issue of a second chamber of parliament, and the scope of regional powers. After failing to reach agreement at the second plenary of Codesa, the Boipatong Massacre of 17 June 1992 would result in the African National Congress calling off multilateral negotiations at Codesa and bilateral negotiations with government until it met a list of 14 demands.

Violence During CODESA 2

During the first half of 1992, alongside the Codesa Working Groups and the second Codesa plenary, violence continued unabated. From the beginning of the year, attacks on the police increased rapidly. The death toll among policemen increased to 46 in the first three months of the year, many police being killed off-duty and while at home. Police patrolling townships were frequently met by barricades, stopped and assailed. However, the government managed to keep the number of attacks on the police out of the press and public arena. Violence intensified between the ANC and the Inkatha Freedom Party (IFP) from February in Natal and on the Reef. The death toll for the year stood at 725 by the end of March. Train violence on the Reef also increased in the beginning of 1992. At the end of March, close to 130 people had been killed and 250 injured as a result of train violence. Attacks on taxis and shebeens, as well as necklacing also increased in the beginning of 1992. Jeffery (2009) states that very little media attention was given to the killing of both policemen (labelled as collaborators) and IFP supporters, with more attention on the security forces. [i]

Pre-Working Groups and Concurrent Activity

In its annual statement on 8 January 1992, the ANC congratulated itself on having “consolidated its hold on the strategic initiative” during the previous year. It once again called for the De Klerk government to be replaced by an interim administration. The ANC rejected De Klerk’s offer of an elected interim government, calling instead for an interim authority to be appointed by Codesa, which would be able to control the security forces, the budget, the electronic media, and the electoral process. Furthermore, once the administration was in place, it should immediately start preparing for elections for a constituent assembly. The ANC “laid out a timeline” for De Klerk’s removal, adding that it would push for the setting up of an interim government in the first half of the year and elections to be held by December 1992. The statement also added that decisions at Codesa would not depend solely on the strength of their arguments but also from all round pressure and systematic mass action in particular. [ii]

From the beginning of 1992, the ANC desired a shift of power from Parliament to Codesa, calling parliament irrelevant and labelling it as not being able to do much more than what Codesa presented it. The ANC also emphasised the importance of the convention and its commitment to it. The organisation thus welcomed the government’s announcement that Parliament would only meet three times a week, as opposed to the usual five, to give MPs more time to devote to Codesa. However, Conservative Party (CP) leader Dr Andries Treurnicht said that Parliament was becoming nothing more than a “glorified rubber stamp” for the decisions made by the convention. [iii]

According to Jeffery (2009), the first major political struggle of the year was timed to coincide with the opening of Parliament on the 24 January 1992. Around 20 000 demonstrators gathered outside the legislature to hear ANC leaders demand “the disbanding of the racist parliament”. President De Klerk addressed parliament about his plans for an elected interim government. He desired the early installation of “a government that is broadly representative of the total population and which is and which will take the lead in further constitutional reforms”. Furthermore, the new transitional executive would be subject to the control of a newly-elected legislature. Both entities would have their functions and powers laid down in a transitional constitution which would be drawn up by Codesa. However, the current tricameral constitution could not be replaced without first consulting the present electorate by means of a referendum. [iv]

Welsh (2009) notes that Codesa, as the most inclusive forum ever established in South Africa, had eclipsed Parliament as the principal focus of politics. This changed temporarily on 24 February 1992, when De Klerk announced that a referendum among white voters would be held on 17 March to test their support for the continuation of the reform process. The victory of the CP in the Potchefstroom by-election on 19 February 1992 was a warning for the National Party (NP), as it had been for decades a safe seat. It was now uncertain whether the NP could win a general election or whether it could win the referendum De Klerk had decided to call. De Klerk announced his decision for a referendum at a meeting of the NP’s Federal Council on 20 February 1992. When he announced his decision, there was shock and some resistance, but De Klerk was adamant that he and the NP could not continue with negotiations without a mandate. There was further shock when De Klerk informed MPs at the following NP caucus meeting. De Klerk was sure that had he taken the issue to a vote, a majority vote would have opposed him. Instead, he decided to go ahead with the referendum, offering to resign as the leader of the NP if the referendum failed. The referendum for 17 March 1992 was to be worded:

“Do you support the continuation of the reform process that the state president started on 2 February 1990 and which is aimed at a new constitution through negotiations?” [v]

The referendum was to be of outmost importance. The ANC was not happy with the racial exclusivity of the referendum but acceded. Mandela called on the white population to vote yes, warning that a “no” vote would mean a declaration of war against the majority. The Democratic Party (DP) also advocated for the ‘yes’ vote. Welsh (2009) notes that the referendum was one of the rare occasions when the English-speaking white population could make an important difference. Much of the business community supported and funded the “yes” campaign. They were positively inclined to the steady erosion of sanctions and apprehensive of a ‘no’ victory. Another factor influencing voters was the readmission of South Africa into the international sport arena. [vi]

The NP had campaigned with a focus on its power sharing proposals, according to Welsh (2009), asking voters “to vote “yes” if you are scared of majority rule”. A new Constitution would need to address a range of principles, including:

  • Domination by a majority, or the possibility of a one-party state [would] be precluded;
  • Your property [would] remain your own – no government [would] be able to confiscate it through expropriation of nationalization;
  • A free market economy;
  • Job and pension security for civil servants;
  • Strong regional government;
  • The maintenance of language and cultural rights, including the choice of community-oriented education.” [vii]

A leaflet stated that Codesa had not overtaken the authority of Parliament. Rather, consensus-decisions adopted by Codesa would still need to pass through Parliament before becoming law. Despite such a NP campaign rhetoric, the ANC did not intervene. Furthermore, the Congress of South African Trade Unions (COSATU) had been dissuaded from launching a mass action campaign against the ‘whites-only’ nature of the referendum, as this could have strengthened the “no” vote. [viii]

The CP accused the NP of having allied itself with the ANC, South African Communist Party (SACP), and Cosatu to bring a communist-dominated black government into power. The NP rejected this, labelling communism as a “devastating ideology”, which had been strengthened by the inequality and suffering brought about by apartheid, which the ultra-right intended to perpetuate. The NP launched an offensive on the CP and its allies. Welsh (2009) notes that propaganda exploited the Afrikaner Weerstandsbeweging’s (AWB) close alliance with the CP, depicting the AWB as ‘armed neo-Nazi thugs’. The CP was not able to match the resources and favourable media coverage of the NP and the DP. Treurnicht, the leader of the CP, was afforded less television and radio coverage, which was slanted in favour of a “yes” vote. Welsh (2009) argues that all these factors contributed to the significant victory of the “yes” vote. Furthermore, “most voters, it seemed, on being asked, as many were, “Do you want to talk or shoot?”, chose the former”. [ix]

The referendum resulted in an overwhelming “yes” vote, with voter turnout at 85% and almost 2 million white South Africans voting “yes”. The “yes” vote represented 68% of the 3.3 million votes cast. The “no” vote was made up of 875 000 people and made up 31% of the total. [x] The outcome of the referendum, was a triumph for De Klerk. This “unambiguous mandate” meant that it would no longer be necessary to refer the inevitable major constitutional changes back to the white electorate. The referendum strengthened De Klerk’s position and weakened the ultra-right. However, despite the victory of the “yes” vote, dangerous and desperate elements remained. There were strong sections of support for the ultra-right in the security forces, bureaucracy, as well as in critical sectors such as mining. Furthermore, as Welsh (2009) notes, there was a significant group of well trained and often battle hardened troops who had completed their military service and had returned to civilian life. This group could have numbered 250 000 men and contained men of all political persuasions in the white population. A significant number of them were probably supporters of the ultra-right, who might have responded to a call for arms by disaffected generals in the event of collapse in the negotiations. [xi]

The result of the referendum was a mixed bag for the ANC. It brought relief as the ultra-right had been weakened and it was no longer necessary for the ANC to hold back on its criticisms of the NP, for fear of strengthening the CP. However, the ANC also believed that the referendum had emboldened the NP which then became cocky and arrogant. The ANC believed that the NP was happy to draw out the negotiating process for as long as possible while holding onto power. Mandela strongly believed that the government was hoping that “the longer [the ANC] waited, the more support [the ANC] would lose". Furthermore, the ANC believed that the NP’s desire for protracted negotiations would ensure that an interim constitution created at Codesa would be very difficult to amend, making it the de facto final constitution. For example, highly entrenched regions would not allow for reintegration into the more unitary form of state envisioned by the ANC. [xii] Furthermore, immediately after the March 17 referendum, the NP made its proposal for an interim constitution. [xiii]

The government denied wanting a drawn-out process. However, hardliners in the cabinet wanted as prolonged a process as possible, and were averse to making concessions to ANC demands. Younger, more pragmatic and verligte ministers counterbalanced the hardliners, such as Roelf Meyer, Sam de Beer, Leon Wessels and Dawie de Villiers. They were eager for a settlement and realised that the longer the negotiations took, the more support the NP could lose. [xiv]

Roelf Meyer became Minister of Constitutional Development in May 1992, succeeding Gerrit Viljoen who had withdrawn due to ill health. Meyer also became chairman of the Beleidsgroep vir Hervorming (Policy Group for Reform), a Cabinet committee made up of ministers, senior officials, and others where needed. This committee was responsible for managing the negotiating process and framing policy proposals for consideration by the Cabinet and President. Roelf Meyer said that some of the senior Cabinet members were unenthusiastic about the negotiating process and the direction it was taking, claiming that “…Certain quarters still regarded the whole process as a tactical exercise to see how little could be ‘given away’ while retaining as much as possible of the old order…”. [xv]

Similar problems were affecting the ANC as negotiations proceeded. According to Welsh (2009), “there were signs of a greater readiness to reconsider aspects of strategy”. The ANC was having second thoughts about its demand for an unelected interim government. The consequence of the ANC being part of such a government could have been that the ANC would be given responsibility for decisions for which it did not have complete control over. The ANC would thus be part of a government with complete control over the running of the country. However, this structure would not be able to address and change the major socio-economic, structural and institutional problems facing the country, and ran the risk of being discredited by its followers. This was indeed a real risk, as Codesa’s proceedings or working groups took place behind closed doors, strengthening suspicions amongst ANC militants that agreements were being made that went against key ANC principles. [xvi]

Working Groups

The working groups were constituted on 20 January 1992 and began their work soon after for two days at the beginning of every week. This allowed for parliamentarians and other members of government to see to their usual duties in the remaining three days of the week. Welsh (2009) notes that Codesa had an excessively cumbersome structure, despite the significant efforts of support staff to make it work efficiently. “Enormous strain” was thus imposed on Cabinet ministers who had to manage demanding portfolios, as well as take part in negotiations. Such an example is presented by the case of the influential leading intellectual of the NP, Gerrit Viljoen, who was forced through illness to retire from Working Group 2, of central importance to Codesa. [xvii]

Parties at Codesa agreed on 3 March 1992 that likely dates for Codesa 2 would be 9 to 16 April 1992. However, on 9 March and whilst experiencing a sudden halt in progress, the Management Committee postponed the second plenary until after April 1992. [xviii] Two important developments took place in April 1992. 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. On 27 April, a special subcommittee of the Management Committee recommended that traditional leaders be allowed special, but not equal, representation in the negotiations, set up through four provincial delegations. [xix]

Working group 1, 4 and 5

Progress toward agreements varied by working group. Working Group 1 dealt with all matters relating to the creation of a climate conducive to free and fair elections. A list of laws that prevented a level playing field were drawn up by Lawyers for Human Rights, and each item was considered for removal by the working group [xx] . Working Group 1 discussed the continued problems of amnesty for political prisoners, the repeal of discriminatory laws, the integration of the security forces, the strengthening of the national peace accord, and the reform of the South African Broadcasting Corporation (SABC). [xxi]

The continued existence of Umkhonto weSizwe (MK) once again threatened to stall the process. Gerrit Viljoen and Roelf Meyer warned that any political settlement depended on the ANC abandoning its armed struggle. Furthermore, De Klerk warned that the NP would refuse to enter any transitional arrangement, such as an interim government, if the ANC maintained its armed wing. The NP argued that MK was a “private army” that should be disbanded and its arms handed over to the security forces. The ANC rejected this, stating that MK would only be disbanded once an interim government had been installed. This caused a great deal of tension and Mandela threatened mass action, while Cosatu threatened general strikes if an interim government was not in place by June. [xxii]

Concurrently, the ANC and the NP disagreed on the need to restructure the SABC and its management. The NP did not see this as necessary towards providing neutral broadcasting while the ANC felt that it was essential for levelling the playing field. On 30 March 1992, the NP gave in and agreed to the reorganization of the SABC. [xxiii] Ohlson and Stedman (1994) note that with the exception of an agreement on changing the composition of the SABC oversight board, the group never went further than broad statements of principle. [xxiv]

Ebrahim (1998) notes that at the end of March 1992, the NP returned from its referendum triumphant and in an aggressive mood. It was prepared to delay the ANC demands for the swift installation of an interim government, encouraging speculation that Codesa’s second plenary would likely be delayed. Despite the attention on the SABC, controversy over MK continued. The government did not appear to view MK as a military threat, however, it viewed this issue as politically important, especially following the heated exchange between Mandela and De Klerk at the plenary of Codesa 1. The NP also made a connection between MK and the continued violence, and threatened to veto agreement on a transitional constitution until political violence had been “solved decisively”. The NP wanted to make the ANC accept some responsibility for ending the ongoing violence, a new precondition. The NP therefore withheld its agreement to a code of conduct for the SADF for more than six months after the National Peace Accord had been signed, from September 1991 until around March 1992, during the Working Group period. Furthermore, John Hall of the National Peace Accord confirmed that unrelenting violence was continuing, the installation of the accord had not had the desired effect, and the violence was becoming serious enough to threaten negotiations. [xxv]

Working Group 1 was asked to investigate ways of improving the situation, with reference to violence. Hernus Kriel tabled a document criticizing the ANC for not committing itself to peaceful negotiations. Ebrahim (1998) notes that the document was an attempt to absolve the government of responsibility for violence. In the final report of Working Group 1 to Codesa 2, all parties recommitted themselves to the National Peace Accord, and further recommended that it should be revamped, stressing the importance of the successful implementation of the accord for free political activity. [xxvi]

Working Group 4 dealt with the reincorporation of the homelands, and established the principle that all residents would take part in South Africa’s first non-racial election. Working group 5 remained dormant because its task was to devise a timetable for the transition, and it therefore depended on the progress of groups 2 and 3 toward devising constitutional principles and proposals for an interim government. [xxvii]

Working Group 3 and an Interim Government

Working Group 3 addressed the issue of an interim government, and was thus regarded by many as the most important working group. The end of January 1992 saw a significant shift in NP policy. It proposed the formation of an elected interim government and a non-racial parliament with an all-party cabinet. The interim government would replace Codesa and would be responsible for the negotiation of the final constitution. However, some leaders within the NP were unhappy with this change of direction, complaining that the NP was succumbing to the demands of the ANC, thereby creating new tensions. [xxviii]

During this period, Thabo Mbeki had said that the ANC’s view was that an interim government should be in place for no longer than eighteen months. Arrangements would need to deal with both executive and legislative elements. This would not involve the continuation of the tricameral parliament as a legislative authority. The executive and legislative authority would be broadly representative of the various political forces in the country. The constitutional principles agreed to at Codesa would be the political mandate for the interim government. Therefore, these principles would have to override any elements in the existing constitution that did not agree with them. [xxix]

The government envisioned a change in the constitution rather than its abolition, a change that would involve both the legislature and the executive. The existing constitution would introduce the transitional government with a transitional constitution, therefore, the decision would have had to come from the current tricameral Parliament. The government was proposing a transitional government as an alternative to the ANC’s ideas of a constitutional assembly and interim government. They believed that a transitional government would be a suitable structure to negotiate a better alternative to a constituent assembly. The constitutional assembly would mean that the majority would be able to finalise the constitution, whilst the focus of the government was on the representation of minorities in decision making. [xxx]

Discussion between the two parties on this subject continued for several weeks. The NP explored the idea 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 minority representation. However, it was not against a voluntary coalition even if the ANC won a majority of votes. Thus, it had to be a political decision and not a constitutionally enforced coalition, which would give veto powers for small parties. [xxxi]

Ebrahim (1998) states that the NP had been particularly astute in proposing an elected interim government. The ANC found the proposal hard to reject as it had previously only recommended the appointment of one, rather than its election. The NP’s proposal also contained an interim constitution, in line with the NP’s intention to secure agreement on a “complete constitution, although imperfect”. The party hoped that this would undermine the ANC’s need for a constituent assembly. Furthermore, if a constituent assembly was established, it would only need to amend the negotiated constitution. The ANC had not, up until this point, considered the need to negotiate a complete constitution before the election of a constituent assembly. [xxxii]

The differences in the ANC and the NP’s proposals could be narrowed down 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 (NP); and the constitutional protection of minorities which would in effect constitute a minority veto (NP). [xxxiii]

The IFP put forward its proposals for an interim government in early February 1992. Like the NP, the IFP was concerned about a “constitutional leap in the dark”. The party proposed a transitional government of reconciliation. It would be broader based than Codesa, would be constituted under the State President and responsible to parliament under the present constitution. The constitution would be amended to make this legally possible. Finally, the government would be made of up “generally recognised political parties and organisations”. [xxxiv]

The ANC’s subsequent proposals were as follows. The organization advocated for a two-stage interim government. The first stage would “level the playing field”, and end in the election of a constituent assembly. In the second stage a final constitution would be drafted. However, the interim government would continue until the adoption of the final constitution. The first phase would begin with agreement in Codesa on all factors related to the establishment of a powerful interim government council, made up of all participants in Codesa and possibly including other parties. The interim government would supervise two independent, non-partisan commissions, four multi-party committees, and the activities of the Tricameral Parliament, the cabinet, and all homeland governments. [xxxv]

The ANC argued for an election for a 300 to 400-member constituent assembly within six months after Codesa had come to a resolution on the process. Parties receiving 5 percent or more of the vote would be allocated seats on a proportional basis. The constituent assembly would complete the final constitution within 6 to 9 months after commencing, and a two-thirds majority would be needed to take decisions on the constitution. The constituent assembly would also act as an interim legislature, while the Tricameral Parliament would fall away once the assembly began its proceedings. Furthermore, a multi-party interim cabinet would then be appointed. [xxxvi]

The ANC also made reference here to the ‘sunset clauses’ in a new constitution. The clause would be introduced with the intention of providing the white population with some reassurance, and would expire after a period of time.  Options included entrenched seats for whites in Parliament and regulations preventing the retrenchments of all existing white employees in the public service. The ANC’s view on the second stage of an elected interim government fit well with that of the government and was close to those of the DP and IFP. [xxxvii]

These similarities created a concern that Codesa was moving too fast. The government had not yet finalized its constitutional proposals and thus was not in a position to negotiate constitutional guarantees that would protect the interest of its constituencies and the NP. The IFP was also unhappy about the idea of an early election. [xxxviii]

The NP suggested 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 further outlined a framework for the second phase of the transitional government. Each of the transitional councils would be made of up six members designated by the Codesa Management Committee and appointed by the president. There would be a maximum of 30 council members and all councils sitting together would form a joint transitional council and operate on the basis of consensus. [xxxix]

The ANC rejected these proposals. The purpose of the first stage of the interim government, for the ANC, was to level the playing field and it felt that the transitional councils would not achieve this. All decisions requiring full consensus would result in few council decisions being made. In the NP’s proposal, the councils would debate the actions the government would take in the future, thus excluding immediate hands-on control. The ANC also rejected the requirement of a regionally based senate. [xl]

The NP’s proposal allowed it to bring its ideas in line with the ANC’s two-phased transitional process. However, they also highlighted the differences between the ANC and the NP. The ANC did not want an interim government burdened with the responsibilities of an apartheid government. If the ANC took on some responsibility for government it would also become accountable, which would allow the NP to escape some of its responsibilities. The ANC envisioned an interim government where the power to control was shared without the responsibility of governance. [xli]

The IFP also opposed the NP’s proposals. Mangosuthu Buthelezi wanted the ANC to disband its military wing, for the King and KwaZulu government to be given delegation status at Codesa, and for KwaZulu to be consulted on the work of the transitional councils. Furthermore, agreement would depend on how the issue of self-governing territories was resolved. [xlii]

On 6 April 1992, a critical point had been reached at Codesa. For three consecutive weeks, parties had failed to reach a compromise on the first stage of the transition. The ANC and the NP agreed that the first stage of the transition should end in an election, however, the negotiators could not agree on the powers of the executive. The ANC proposed the appointment of an 8-person interim government council, that the tricameral parliament be merged into one chamber, and that the council approve draft legislation before it being submitted to parliament and again before it being signed by the president. TBVC (Transkei, Bophuthatswana, Venda, Ciskei) legislation would also be subject to the same approval. Executive authority would reside with the president, however, he or she would only exercise such authority with the approval of the council. The council would have overall responsibility for all departments. In case of a deadlock, the council would take decisions by a two-thirds majority. Furthermore, proclamations by the council would have the same weight as an act of Parliament. [xliii]

The government argued that the ANC’s proposals would result in two different government governing South Africa simultaneously. Until it was constitutionally or legally possible, a proper interim government could only be established after an election, as the government was not willing to let go of any power until it was voted out. The government subsequently proposed the establishment of preparatory or transitional councils that would have no more than advisory powers. [xliv]

On 7 April 1992, in order to break the deadlock, a Technical Committee of 11 members was established. Bilateral meetings between the ANC and the NP increased at the same time to bring their positions closer together. Jacob Zuma and Valli Moosa attended these meetings for the ANC, and Roelf Meyer and Tertius Delport for the NP. The Technical Committee recommended the establishment of a transitional executive council (TEC) representing all parties at Codesa, to level the political playing field. Several six-member sub councils dealing with defence and law and order, regional and local government, and finance would support the council. There would also be independent media and electoral commissions. Nevertheless, and critically, the council’s relation to the executive was not defined. The committee was also unable to recommend whether the council would take decisions by total consensus, as suggested by government, or by ‘sufficient consensus’. [xlv]

On 11 May 1992, the IFP confirmed its support for an elected constitution-making body. On the same day Working Group 3 came to agreement on all issues falling under its mandate and produced its final report for ratification by the plenary of Codesa 2. Agreements were reached on all aspects of the structure of the TEC. It would operate alongside, and in some instances, oversee government. The TEC would function solely to level the political playing field before the election and installation of a new interim government. This agreement resolved on decision making in the TEC. It would take decisions by consensus, and if not possible, by a majority of 80 percent of the nineteen members. Furthermore, it was agreed that all security forces would be placed under the joint control of an interim government and that the electronic media would be regulated by an independent body. [xlvi]

Working Group 2: Constitutional Principles

Working Group 2 dealt with the key issues of Codesa, constitutional principles for a final constitution and a constitution-making body. While the IFP and other parties were searching for support for a federal state, Inkatha published its constitutional proposals in January 1992. The party argued that the existing provinces and homelands should be replaced by nine or ten federal states, each with its own legislature and executive, with significant autonomy from the central government. [xlvii]

The NP was concerned that an assembly elected by a majority of votes would prescribe constitutional principles which would not be accepted by the rest of the country’s population. These fears could be addressed in two ways, through binding the assembly to previously established agreements or by setting a high voter threshold required for the passage of a new constitution. [xlviii]

Ohlson et al (1994) note that room for agreement seemed possible. The ANC’s transition proposals allowed for constitutional principles to be negotiated beforehand and made binding on the elected constituent assembly. The NP believed that its concerns could be met, as it only needed to secure agreement with the ANC on its constitutional proposals. The ANC argued that the constitutional assembly could be bound by principles, but not by details imposed through previous negotiations. Thus, the key question became the difference between a ‘principle’ and a ‘detail’. There was possibility for compromise too on the question of the voting threshold. The ANC’s constitutional document from April 1991 did not specify the percentage of votes the constitutional assembly needed to pass legislation. However, it did mention that once in place, a constitution could only be amended by a two-thirds majority. [xlix]

According to Ohlson et al (1994), the NPs initial strategy was to engage with the ANC on constitutional principles and use Codesa as a de facto constitution writing forum. The NP proposed a “Presidency by Committee” and the ANC rejected it, labelling it as a detail of a constitution and not a broad principle. The NP then focused on the distribution of power between regions and the centre of government, and the protection of minority interests under a new constitution. However, neither of these issues were resolved. [l]

The ANC was in a clear dilemma. It understood the need for some form of law to be in place during the interim rule, and it did not want the law to be the constitution then in place. However, it feared that if the constitution writing process dragged on too long or reached deadlock, the interim constitution could become permanent. These fears were exacerbated when the NP put forward its draft constitution as the proposed interim constitution. Furthermore, if the ANC accepted the need of an interim constitution, it would have to accept the extra delay in negotiating it.  The issue of voter threshold for passing the final constitution became central, the higher the percentage needed to pass the document would mean greater odds for a deadlock. [li]

Initially progress came about 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. In February 1992, the ANC believed that sufficient progress had been made and that Codesa could complete its work in the following six weeks. However, the government was not as optimistic. [lii]

On 18 February 1992, the ANC greed to Codesa prescribing the status of regional government under a new constitution. In March, it was agreed by parties that “a new constitution should provide for effective democratic participation of minority political parties consistent with democracy”. However, the qualification was that the principle did not imply either simple majoritarianism or minority veto powers. At the same time the ANC’s Constitutional Committee released a discussion document, “Ten Proposed Regions for a United South Africa”, which outlined the party’s views on the importance of a decentralized system of governance. [liii]

The issue of the future of the public service also gained prominence. De Klerk had advocated for job and pension security for public servants during his referendum campaign. Mandela had also reassured white public servants that their future was safe under a non-racial government and that no official would lose out financially while the public service was being democratized. [liv]

While differences were emerging at Codesa, on 30 March 1992, it was agreed that Codesa 2 would take place on 15 and 16 May 1992 to bind parties to substantive agreements on an interim government and elections for a constitution-making body. These dates set by the Management Committee aimed to put pressure on the parties to conclude their agreements. During the same day, the government put forward its proposals on a constitution-making body consisting of an elected bicameral transitional parliament acting under the transitional constitution. This transitional parliament would be responsible for drafting the new constitution. The divide between the ANC and the NP remained the ANC’s rejection of a regionally based senate with a veto over the decisions of the elected national assembly. [lv]

On 31 March, the ANC suggested a 400-member constituent assembly to draw up a constitution within a four-month period. All South Africans over the age of 18, including those in the TBVC states, would be able to vote. If the assembly did not meet the deadline, it would dissolve and new elections be held, to prevent any party from unreasonably delaying the writing of the constitution. Furthermore, a two-thirds majority would be needed to pass decisions in the assembly. [lvi] The NP argued that it wanted an interim government of national unity as soon as possible. However, such a government and the final constitution needed to be based on power-sharing to ensure stability and economic growth. Deviation from this model would require the NP to find a new mandate from the white electorate through a referendum. The NP’s concern was of the majority ignoring the wishes of the minority in a constituent assembly.  [lvii]

Around this time, difficulties in reaching a successful outcome at the Codesa 2 plenary seemed to emerge. On 14 April 1992, the ANC accused the government of “intransigence”. On 26 April, the ANC suggested the creation of an independent constitutional panel to make sure that the constitutional principles agreed to at Codesa would be enshrined in the final constitution. On 28 April, Working Group 2 produced a report that was regarded by many as a breakthrough. It proposed that Codesa decide on general constitutional principles and agree to an interim constitution which would allow for a single-chambered, directly elected constitution-making body, acting as an interim legislature. With regards to regional power, decisions relating to regional structures would require a special majority of the regional representatives and a special majority of all delegates in the national assembly. [lviii]

The NP was satisfied with these proposals and therefore temporarily put aside their plans. The NP’s strategy, according to Ebrahim (1998), was to develop the interim constitutional proposals to such an extent that constitution making body would only need to amend them. The expectation was that Codesa 2 would establish another working group to draft the interim constitution and be confirmed by a Codesa 3. On 4 May 1992, a special task group of Codesa unanimously recommended that the TBVC states be reincorporated after testing the will of their citizens, which would be achieved through their casting their votes in elections. [lix]

Nevertheless, after an earlier breakthrough, a deadlock would arise by 8 May 1992, a week before the Codesa 2 plenary. The ANC and the NP were in a deadlock on the composition of the constitution-making body and the power of a TEC appointed by Codesa. Bilateral discussion between the two parties were unsuccessful in resolving the differences. The ANC argued that the constitution-making body should be a single chamber body, whereas the NP maintained that the option of a second chamber should be kept open. The second house would be where minorities could exercise their power to check the influence of the majority in the first house. This disagreement was related to the majority required for the adoption of the final constitution. Hassen Ebrahim (1998) notes that the NP wanted the percentage to be higher than what it believed the ANC would be able to obtain, to effectively give minority parties a veto over ANC decisions. The debate centred around whether a two-thirds or a three-quarter majority would be needed to adopt the new constitution. Furthermore, the negotiators could not agree on whether the powers of regional and local government would be entrenched in an interim constitution. [lx]

The deadlock notwithstanding, the ANC and the NP believed 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, constitution-making body. All adults would have two votes, one for a regional representative and one for a national representative. Furthermore, this clause was to be entrenched and it would have to be included in the final constitution. However, there was still no agreement on the composition of the legislature. [lxi]

The NP claimed that the issue was not about percentages but rather about how the constitution would be drafted. The party argued for a higher majority as a method of softening its demand that the second chamber or senate have veto powers over the national assembly. However, for the ANC, the resolution of percentages was an integral part of a package of agreements that would otherwise be jeopardized. The ANC had already compromised on a number of issues in order to secure a compromise, including agreement that: there would be two ballet papers reflecting a national and a regional vote, the legislature would sit in two chambers, and that the bill of rights could only be amended by a 75 percent majority. [lxii]

On 14 May 1992 and one day before the plenary of Codesa 2, the ANC called 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 organisations attended the meeting, which resolved to intensify pressure on the government.  The demands were: a one person one vote election on the basis of proportional representation, a two-thirds majority for the drafting of the constitution which could not be vetoed, and the immediate installation of an interim government with executive powers. [lxiii]

Later on the same day Tertius Delport put forward a new proposal for the NP. It was prepared to accept that the final constitution be adopted by a two-thirds majority, provided that a 75 percent 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. Furthermore, provisions affecting regional government would be subject to a special majority of regional representatives. The ANC refused to accept this proposal. [lxiv]

Although these issues remained unresolved, it was still necessary for Codesa 2 to reach agreements. Therefore, the Management Committee met at 4 p.m. on 14 May. It was reported that Working Groups 1 (climate for free political activity), 3 (interim government), and 5 (time-frames) had successfully completed their assignment. However, working Group 2 (constitutional principles) remained deadlocked. It was decided that only those agreements reached in the working groups would be put forward at the plenary. Furthermore, no amendments to agreements would be permitted at the plenary. Finally, the Management Committee would seek a mandate from the plenary to create a structure to complete the outstanding assignments.

CODESA 2 Plenary

In the build-up to the second Codesa plenary negotiators were upbeat and cautiously confident. In the context of political tension and rampant violence, a lot of hope was placed on the proceedings of the plenary. Hassen Ebrahim (1998) describes the atmosphere around the venue on the first day of the second plenary, 15 May 1992:

“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.” [lxv]

On the morning of 15 May 1992, the second plenary session of Codesa began at the World Trade Centre in Kempton Park, Johannesburg. The plenary began with a prayer and Justices Ismail Mahomed and Piet Schabort were to chair the plenary. The morning session started an hour late, at 10:00 am, but was then adjourned for five hours to allow Working Group 2 to find a last-minute compromise. [lxvi]

Welsh (2009) and Ebrahim (1998) describe the crucial Working Group 2 meeting on 15 May 1992. The ANC’s chief negotiator, Cyril Ramaphosa went “head to head” with Tertius Delport, the Deputy minister of Constitutional Development, who had succeeded Gerrit Viljoen as NP leader in Working Group 2. The NP was adamant that a 70 percent majority be required to take decisions in a constituent assembly. Furthermore, issues relating to the bill of rights, regions, and the structure of government would require a 75 percent majority. The ANC had originally proposed a two-thirds majority on all constitutional issues. However, after consultation with Patriotic Front members, the ANC compromised and proposed a 70 percent majority for all issues relating to the constitution, and 75 percent for the Bill of Rights, if the NP agreed the senate or second chamber be elected and not appointed. [lxvii]

However, an additional measure was added to the ANC’s demands, and it is here where Ramaphosa decided to create his own trap.  The ANC demanded that space be made for a referendum to be used as a deadlock-breaking mechanism, or to be used if the constitution was not completed within a limited period.  Ramaphosa demanded that if the constitution making body failed to pass the constitution with the required majority within 6 months, then it would be submitted to a referendum and if more than 50 percent voted in favour, it would be adopted. De Klerk instructed Delport to hold firm, because if Ramaphosa’s proposals were adopted, then the ANC could stall the process for six months and then submit its preferred draft to a referendum, which it would likely win. Ramaphosa, according to Welsh (2009), had purposefully engineered the deadlock and the subsequent breakdown of Codesa, saying that he wanted to demonstrate that “we are dealing with an enemy that will not give in easily”. It was not a mandated compromise, but rather a gambled based on the certainty that the NP would reject it, and it further served to highlight the NP’s intention to secure a veto power. For the ANC, the gamble was worth the risk as the NP rejected the compromise. [lxviii]

On this note, the plenary restarted at 4 p.m. The IFP signed the amended Declaration of Intent. However, Zulu traditional leaders who were protesting the exclusion of the KwaZulu government and demanding the full participation of the Zulu king, submitted a petition to the plenary. The Bophuthatswana government announced that it could not be part of any interim government or elections, besides its commitment to continuing negotiations. [lxix]

Hassen Ebrahim (1998) notes that from here the meeting turned into a “verbal brawl”. [lxx] During the plenary, the members addressed  and debated the issues of the earlier Working Group 2 meeting. Chris Hani said that the deadlock lay “firmly at the door of the principal deadlocker, the South African government.” He further encouraged the government to use the “exit gate” and said that "Codesa must hear the voices of our mobilised, vigilant and critical population out there”. [lxxi] Ebrahim (1998) notes that this deadlock made visible a continuing mistrust. At this juncture, the DP’s Colin Eglin made an effort to save the day. He criticized both the NP and the ANC for allowing their disagreement to spill onto the conference floor, and then made an appeal for both party’s leaders to intervene, saying: “I don’t believe the differences are so great that the De Klerk’s and Mandela’s can’t solve them”. After a few more speeches, the meeting was adjourned, which provided an opportunity for Mandela and De Klerk to meet. [lxxii]

De Klerk and Mandela held an urgent meeting to attempt to resolve the impasse. They agreed that the working groups would be suspended and that outstanding issues would be referred to an all-party management committee, which would offer a more streamlined body for decision making. The two leaders hoped that the committee would be able to resolve the issues within a month, so that a third plenary session of Codesa could be held ratify all agreements reached. [lxxiii]

After the heated plenary on the first day of Codesa 2, the Management Committee met at 10:30 am on 16 May. It concluded that although Codesa 2 had fell short of expectations, the negotiations were not in jeopardy. The Management Committee decided to use the mandate it had earlier obtained from the plenary to authorise the use of its authority to ensure that the objectives of the Declaration of Intent were attained. This included the power to implement any agreement reached by Working Group 1 or any other agreement falling under its mandate without calling a plenary of Codesa. [lxxiv]

On 16 June and the second day of Codesa 2, De Klerk and Mandela were the first key speakers to address the plenary. Both leaders complemented the progress made and encouraged a rapid resolution of outstanding issues. Jeffery (2009) notes that while De Klerk was conciliatory in tone, Mandela attempted to get delegates to follow the ANC line. He read out a list of ten points, all favouring the ANC’s position, and demanded to know who in the plenary was opposed to them. Mandela further warned of mass action that would bring down both the government and “other leaders who thwart the people”. [lxxv]

Ebrahim (1998) notes that parties appeared more conciliatory on the second day of Codesa 2, as if they were ashamed of their behaviour on the previous day. This was indeed the case with the closing remarks on the second day, with Mandela and De Klerk scheduled to speak last. Mandela referred to Codesa as a family and said that he would look back on Codesa 2 with fondness. The plenary agreed to adjourn the meeting to allow for parties to refer the issues to their principals.  No agreements were ratified at the second Codesa plenary. Furthermore, the Management Committee was advised to summon another plenary session to adopt agreements entered into at a later time. However, this had to take into account that the current session of Parliament was due to go into recess on 28 June 1992. [lxxvi]

The Daily Management Committee then decided that all agreements needed to be classified in terms of what was required: elaboration, preparation, and implementation or referral to the transitional executive council (TEC) when it was established. Furthermore, members agreed that agreements dealing with a climate for free political activity had to be implemented with immediate effect. This applied in particular to the future of the SABC and the question of political intimidation. [lxxvii]

In terms of the deadlock in the resolution of substantive issues, the government rejected the ANC’s aforementioned proposal which included putting the final constitution to a referendum if it was not agreed upon within 6 months. It demanded that decisions regarding regional powers be decided by a 75% majority. Furthermore, the government wanted a senate (second house) to be involved in decisions on the new constitution. In the end, the government’s position was supported by 11 out of Codesa’s 19 participants, with only seven supporting the ANC’s position. [lxxviii]

According to Anthea Jeffery (2009), the ANC refused to accept that it had been defeated on the federalism issue. Ramaphosa accused the government of bad faith and trying to thwart the will of the people. Whereas a two-thirds majority had been accepted for Namibia, the South African government did not want a democratically-elected body to draft the new constitution. Accordingly, the government was determined that a senate, with disproportionate representation for regions and minorities, would have a veto over the people. [lxxix] The NP accused the ANC of being intransigent and of wanting to draft the final constitution on its own. Subsequently, the ANC accused the NP government of bad faith and seeking to ensure that the special majorities it argued for would not allow the final constitution to be adopted, meaning that the interim constitution would last forever. [lxxx]

The Aftermath of CODESA 2

On 19 May 1992, senior ANC negotiator, Mohammed Valli Moosa publicly announced that all the ANC’s previous “compromise positions were considered withdrawn”. This therefore marked the failure of Codesa and a shift in the ANC’s enthusiasm towards the convention since the opening of Codesa in December 1991. At this time, the ANC was confident that it could dominate the proceedings. At the second plenary its support had declined and only seven organisations had supported it on the significant issue of whether South Africa should be a unitary or a federal state. Jeffery (2009) argues that although this was the central issue, this was obscured by accusations that the government was against majority rule. [lxxxi]

Several ANC members and others supportive of the organisation and its positions criticized the government for protecting minority rule and being against democracy. However, Anthea Jeffery (2009) argues that De Klerk had not gone back against his commitment to a negotiated, non-racial democracy. She adds that neither was De Klerk alone in searching for effective checks and balances on future executive power. Buthelezi and other black leaders also wanted this. Furthermore, the 11 parties who had voted against the ANC in at Codesa 2 did not want a white veto, but “normal safeguards” against the abuse of power through a strongly federal system. Jeffery notes that the ANC’s introduction of a deadlock mechanism which could allow the ANC to determine the content of the constitution by a simple majority, highlighted the need for caution. [lxxxii]

ANC National Conference and Plans of Mass Action

On 25 May 1992, the ANC and the NP met to find solutions to the deadlock. On the 26th of May, after consulting its constitutional structures, the ANC formally withdrew (only) the compromise proposal it had put forward in the closing moments of Codesa 2. Soon thereafter, the ANC held its National Policy Conference between 28 and 31 May. The conference confirmed the agreements that were reached at Codesa and provided guidelines for its vision of the process. [lxxxiii]

One purpose of the conference was to adopt a set of pragmatic policies demonstrating that the ANC was ready to govern. Another important objective was to review the recommendations of a “negotiations commission”. This was a committee of senior alliance leaders who were earlier mandated to create a plan of action to “force the government to begin negotiating seriously about an interim government.” The report began by analysing the balance of forces in the country, revealing a deepening crisis but a regime commanding great military and other resources. The report emphasized the importance of dealing with negotiations as “an arena of Struggle”, and encouraged the ANC to make sure that “negotiations and mass action are creatively linked”. The ANC’s strategic objectives should be the removal of the regime from power, by breaking its resistance, thus leading to a speedy transition to democracy, while strengthening the ANC at the same time. The programme of action was to include: sustained or ‘rolling’ mass action, the setting of deadlines for the introduction of an interim administration and constituent assembly, and an increased public focus on political violence. [lxxxiv]

The report outlined four aims that were meant to guide the ANC’s action programme. The first was to “expose the government’s complicity in murder, violence, and the destabilisation of political opponents”. The second aim was to “expose the scandals and gross abuse of power of the regime”. The third was to dismantle apartheid rule by resisting remaining apartheid laws and dismantling the Bantustan system, especially in Bophuthatswana and Ciskei. The fourth would be to advance democracy by exposing the regimes dishonesty in the negotiation process, particularly at Codesa and with emphasis on exposing the governments double agenda of participating in negotiations while “destabilising and undermining its political opponents”. [lxxxv]

The conference accepted the commission’s recommendations and decided to embark on a new campaign of mass action. Rolling mass action would proceed in four phases, as Anthea Jeffery (2009) outlines:

“The first phase would begin on 16 June with 70 rallies in diverse towns and cities and would last until the end of the month. The second phase would start on 1 July and would be marked by marches, boycotts, and acts of civil disobedience. Phase three would begin in August with a national strike, and was also intended to bring governance to a standstill through besieging and occupying government buildings. Phase four would start thereafter and would be maintained until the government was overthrown.” [lxxxvi]

The government condemned this plan. Stoffel van der Merwe accused Ramaphosa and Mandela of using violent and racist rhetoric which did not credit the ANC. On 2 June 1992, mass action began with a strike at Soweto’s Baragwanath Hospital. The National Education and Allied Workers’ Union (NEHAWU) insisted on a minimum wage of R724 a month, rejecting an offer of R708 a month and called on its members to strike. More than 1500 general assistants stopped working, as well as others who were not Nehawu members but who were unable to do their jobs. Furthermore, strikers prevented store personnel from delivering goods, while clerks, kitchen staff and general assistants were moved out of their work stations. The strike then spread to nine other hospitals. [lxxxvii]

Codesa Committee Meeting – 15 June 1992

The Management Committee of Codesa met on 15 June 1992. As a result of general criticism around Codesa’s lack of transparency, the Management Committee confirmed that negotiations should be more accessible to the press, and agreed to set guidelines for this to take place. The meeting also reflected on the lack of progress in the plenary. The meeting displayed lower morale amongst its members. It could not agree on the size and composition of the new Daily Management Committee, and there had been no progress in meetings between the ANC and the NP. Furthermore, Buthelezi threatened that the exclusion of the King and kwaZulu administration from Codesa could lead to violence. [lxxxviii]

Mass action and Boipatong Massacre on 17 June

The ANC had earlier announced that its rolling mass action campaign would commence with a “people’s referendum” on the 16 June, 1992. Supporters attending the ANC’s 70 scheduled rallies would be asked whether an elected-constituent assembly should be frustrated by an undemocratically elected senate, predetermined regional powers meant to protect white privilege, racism, and tribalism and a 75% majority requirement, which would give the minority veto powers. On the 16th of June, the ANC reported a “90% to 95% response” to its call for a stay away and said that this was a “solid vote” for the immediate installation of an interim government. However, law and order minister Hernus Kriel argued that many people had stayed away from work for other reasons, including: intimidation, a lack of transport, and the fact that June 16 was generally considered as an unofficial public holiday. Police estimates put the number of people attending the ANC rallies at 80 000 across the country, far below the one million people the ANC had hoped for. Furthermore, only 13 rallies took place out of the 70 called for. [lxxxix]

Conflict between the ANC and the IFP had been looming before the 16 June stay away. Situated in the Vaal Triangle, an abandoned Iscor hostel called KwaMadala had become a refuge for IFP supporters who had been driven from the Sebokeng hostel in July 1990. The IFP said that a significant amount of its supporters had been removed from their township homes or hostel rooms and thereby forced to find refuge in KwaMadala, so many that the list of their names filled almost 13 pages. On the other hand, the ANC accused the Hostel of being a bastion of violence in the Vaal. In early June 1992, the ANC held a press conference where four men claimed that they had been abducted and taken to KwaMadala, where they were tortured and forced to join Inkatha. One of the men claimed that he had witnessed the killing of three ANC activists at the hostel, and that white men were working with the hostel residents in attacks on the ANC. [xc]

Township animosity to the KwaMadala hostel increased and it became a prison as well as a sanctuary. Several hostel residents, Inkatha members and sympathizers were killed when travelling outside the hostel, in and outside of Boipatong, including a Zulu woman who had a relationship with a hostel dweller. After widespread coercion to comply with the 16 June strikes, as well as the death of at least 40 people that day, anger reached a boiling point amongst KwaMadala residents who decided to take revenge on ANC supporters in Boipatong. [xci]

Preparations were made and the hostel dwellers left the hostel in a group of between 300 to 500 mean, armed with spears, knobkerries, pangas, axes, AK-47 rifles, shotguns and handguns. They divided into groups near Boipatong and launched an assault on the township from several directions simultaneously. The attack began at 9:30 PM on June 17. The primary targets were the township’s self defence units, but after having failed to find them, the group attacked random residents in Boipatong. After 40 minutes of “killing, raping and pillaging”, the attackers returned to the KwaMadala Hostel, leaving behind 39 dead, several injured and countless houses damaged and raided. The death toll stood at 45, after 6 of the injured later died. [xcii]

Rumours of Police Involvement and ANC break off Multilateral Talks at Codesa and Bilateral Talks with Government

The police started receiving calls of the attacks from around 10 PM, and two Casspirs were deployed to intervene. Upon arrival, ambulances were called for, and detectives to investigate. During the night residents of the township were agitated but not hostile to the police. This changed the following morning, when rumours of police involvement in the attacks began to spread. [xciii]

It is not clear why and how rumours of police involvement spread. However, as Anthea Jeffery (2009) notes, the ANC’s campaign of rolling mass action which took place the day before the massacre, had not been as strong as hoped for and was in danger of subsiding. She argues that a spark was needed to reignite the struggle. The Boipatong massacre was horrific enough to provide this spark. However, it would not fuel rage against De Klerk and the government unless it was perceived as another Third-Force (it was natural during the period to suspect ‘third force’ involvement, based on earlier such events|) atrocity with police involvement. Claims of police involvement were then maid around noon on June 18. The claims involved attackers being brought into the township by Casspirs and evidence of police involvement. Police using Casspirs and white men were seen assisting the attackers. Culpability was pointed at De Klerk, the government and the police. [xciv]

Public outrage set on De Klerk and his proclamation of innocence was swept aside. Around 200 detectives were immediately drafted into a special investigative team to investigate but made scant progress. They could not successfully question survivors of the township as, according to Jeffery (2009), residents had been instructed by the ANC not to speak to the police, on the basis of the police having been involved in the attack. The police therefore focused their investigations on the KwaMadala hostel where 75 hostel dwellers were arrested and charged for murder. [xcv]

The Goldstone Commission was called in and held a preliminary hearing on 6 July 1992. The commission found no evidence of the involvement of the president, any member of cabinet, or any high-ranking official of the South African Police or Defence Force. The commission further labelled these allegations as unwise and dangerous in the violent context. The ANC reacted strongly to the commission, arguing that a lack of resources and the commission’s terms of references had restricted its ability to get to the truth. The ANC further underscored the need for international monitoring and investigation. However, every future inquiry by the Goldstone Commission confirmed that the police played no role in the massacre. One of these included an investigation conducted by police experts brought in from the United Kingdom. The court trial in 1993 which convicted 17 KwaMadala residents of murder, declined to impose the death penalty on the convicted as they had all been victims of previous attacks by ANC supporters. Furthermore, in a later application for amnesty in 1999, the Truth and Reconciliation Commission (TRC) found that the attackers had been telling the truth when they said that they had acted without help from the police. [xcvi]

On 20 July 1992, the findings of Dr Peter Waddington on the police role in the Boipatong massacre were published. He had been brought in by the Goldstone Commission. Dr Waddington found no evidence that the police had any forewarning about future attacks in Boipatong. There had been suggestions that a serious event would take place in the Vaal Triangle, but Sebokeng was mentioned and not Boipatong. However, Waddington did criticize the response of the police to the massacre as well as the methods they used in investigating the killings. He found that the police had not made the best use of their limited manpower, that their intelligence was inadequate, and their contingency planning defective. The investigation had been insufficiently co-ordinated and the police had not tried hard enough to win the trust of the Boipatong residents, according to Dr Waddington. However, he made it clear that no evidence was found of police involvement in the killings. [xcvii]

On Sunday 21 June 1992 (before the preliminary hearing of the Goldstone Commission and without the hindsight of the findings clearing the police) Mandela addressed a rally of around 20 000 ANC supporters in Boipatong. Here he blamed the government for the massacre and announced that the ANC was breaking off all bilateral talks with the NP. On June 23, the organisation ended all multilateral participation in Codesa. Constitutional negotiations were to remain on hold until the government had met a list of 14 demands, including: the creation of a sovereign constituent assembly; and end to hit squads; the disarming and disbanding of special forces; the prosecution of all security force personnel involved in violence; an end to repression in the homelands; the implementation of a programme to fence and guard hostels and convert them into family units; a ban on the carrying of traditional weapons; and an internal commission of inquiry into the Boipatong massacre. Furthermore, after the Boipatong massacre, violence continued in the region unabated. [xcviii]

It is not possible, from surveyed literature, to confidently proclaim whether the ANC or an ANC member purposefully fabricated a claim against the South African Police (SAP), and if so, which member. It is also not possible to confidently say whether ANC leaders knew that the SAP was not involved when they blamed at the government and De Klerk. Furthermore, because of past third force activity, it was not far-fetched to suspect it. It is however evident that the SAP were found not to be responsible; the testimony from a special constable that he had “seen gunmen climbing into police armoured vehicles” was discredited, as an inspection in loco made it clear that he could not have witnessed what he claimed to have seen [xcix] ; and the ANC blamed the government and the police.

Exchange of Memoranda

An exchange of memoranda soon followed between Mandela and De Klerk detailing the reasons for the breakdown in negotiations and blaming each other for the violence. [c] Mandela’s memorandum was published on June 26, 1992 (before the Goldstone Commission hearing and such hindsight) and it set out the decision of the NEC of the ANC and detailed the fourteen demands made on the government. De Klerk’s responding memorandum was published on July 2 1992. It did not address the ANC’s 14 demands, denied government involvement in the violence and refused to commit the government to the principle of majority rule. However, the government disbanded Battalion 31, Battalion 32, and Koevoet, referred the future of the hostels to the Goldstone Commission, issued a proclamation banning dangerous weapons, and agreed to international monitoring of the violence. [ci]

De Klerk stated that the government was not sponsoring violence and was not behind the Boipatong massacre. He said that most of the political violence took place between supporters of the ANC and the IFP, and claimed that this could only be dealt with through trilateral meetings of Mandela, Buthelezi and himself. The president further accused the ANC of deliberately sabotaging negotiations and doing so in order to seize power. [cii]

However, as Hassen Ebrahim (1998) explains, in an attempt to lure the ANC back to the negotiating table, De Klerk “significantly softened the NP’s demands for minority protection, even dropping its demand to give minority parties an increased representation in the senate.” The NP then proposed that each region have equal representation and seats be allocated to each region in proportion to party support. The NP dropped its demand for a 75% majority to change the structure of the regions. Furthermore, the NP proposed that a general election be held if the constitution was not completed in 3 years, in contrast to the ANC’s demand of 6 months.< [ciii]

Mandela replied to De Klerk and dismissed his proposal of a trilateral meeting, accusing De Klerk of using party political propaganda. Mandela stated the president was “seeking to entrench federalism by subterfuge”, and repeated the claim that the government was involved in violence. [civ] Mandela refused to meet De Klerk. Regarding the NP’s new proposal, the ANC welcomed it, but complained that they did not go far enough. Furthermore, the ANC insisted that the NP abandon any form of minority veto, and charged De Klerk with ignoring the gravity of the ANC’s demands. [cv]

Buthelezi had also commented on the situation on 30 June 1992 in the KwaZulu legislative assembly. He claimed the real reason behind events since Codesa 2 was that the ANC had suffered “a terrible political defeat” at the convention. Bilateral deal-making between the discredited NP government and the ANC had benefited the organization, until the IFP and other parties came to support the NP on key issues, to an extent where more than half the delegates at the convention voted against the ANC. Therefore, according to Buthelezi, the ANC wanted to separate the government from “the solidarity which was emerging at Codesa around the ideas of federalism and consensus politics”. The ANC thus did not want to take part in multilateral negotiations it could not control. It wanted to enter into direct negotiations with the government alone, as a weakened and isolated president would not be able to withstand the pressure, and was pressuring the government into this through mass action and violence. De Klerk was unable to put an end to this because his government lacked legitimacy. Buthelezi further added that the ANC had exploited the Boipatong massacre. [cvi]

Mass Action/Meetings and a UN envoy

On 15 July 1992 the ANC, SACP and Cosatu declared the August to be a month of “rolling mass action”. Several hundred thousand South Africans took part in some form of mass action across the country, and more than 90% of the workforce stayed away from work for a national general strike. As Ebrahim (1998) notes, this marked the biggest form of mass action in South Africa since the 1950s, “effectively creating a referendum of the black majority in which people ‘voted with their feet’”. The campaign was a significant success for the ANC, mobilizing black people around its demands, particularly for an interim government. [cvii]

On 27 July 1992, the NP met with the governments of Bophuthatswana and Ciskei, the IFP, the Solidarity Party, the National People’s Party, the Ximoko Progressive Party, and the Dikwankwetla Party to discuss how to get negotiations going again. Buthelezi began voicing his unhappiness in early August with the NP’s attempt at getting negotiations going again with ANC, something he saw as a softening approach towards the organization. Ebrahim (1998) notes that what seemed to bother Buthelezi was the possible exclusion of the IFP from these talks. He thus threatened to withdraw from all future multi-party talks if this happened. In a response to this, the NP met with both the IFP and the DP on 20 August 1992. The parties agreed that Codesa should resume in September, even in the ANC’s absence. [cviii]

The United Nations held a special session to deal with the question of violence in South Africa on 2 August 1992. Thus, a special representative, Cyrus Vance, was sent to visit South Africa, whom arrived later in August. One of his first meetings was with the Minister of Foreign Affairs, Pik Botha. He urged Botha to hasten the release of remaining political prisoners. Linking this to a question of a general amnesty, Botha demanded that the ANC first abandon its policy of an armed struggle and deal with the question of MK. In his report back to the UN Secretary General, Vance was critical of most state institutions, but especially of the security forces. He believed that the security forces did not have the legitimacy to assist in the transformation of South Africa. Nevertheless, Vance praised the Goldstone Commission and structures of the National Peace Accord. Furthermore, Hassen Ebrahim (1998) notes that this intervention by the UN was important because it seemed to favour joint control of the security forces during the transition. [cix]

Analysis

Some analysts argue that a lot of progress was made at Codesa and that parties were on the verge of an agreement, shortly before being frustrated by NP ‘intransigence’. However, other analysts argue that only the pretence of an agreement was achieved in April and May 1992, and that neither party was willing to make the concessions needed for an agreement. Ohlson et al (1994) state that the latter argument correctly highlights the great amount of fuzziness in the tentative settlement proposals, while the former argument correctly positions the NP as the key obstacle to agreement. [cx]

Ohlson et al (1994) note that if an agreement had come out of Codesa, it would have contained a lot of ambiguity. The division of powers between the TEC and the existing executive and legislative structures were ambiguous. Codesa 2 left unresolved the status of the homelands and how and when they would be incorporated. A tentative agreement at Codesa 2 would still have required more negotiation, such as to write up an interim constitution.  However, the authors also highlight that unresolved problems and ambiguity do not guarantee failure. In the final agreement reached in 1993, which led to the 1994 elections, there were unresolved issues and a lack of clarity. For example, the roles of the TEC and the existing government were not clearly stated, and parties spent months drafting and revising the interim constitution. [cxi]

An incomplete agreement, according to Ohlson et al (1994), can form the basis for agreement if “sufficient trust, goodwill, and settlement exist in both parties.” In May 1992, at second Codesa plenary, it was evident that parties did not trust each other. However, this was also the case with the agreements made in 1993. At Codesa, the ANC did make important concessions and signalled the willingness to compromise. It accepted that a constitution would be passed by more than a simple majority, and it accepted the need for an interim constitution. Away from the negotiating table, the ANC also showed a willingness to consider “sunset clauses” for minorities that would provide special constitutional protections for a specific period. Such protections included entrenched seats for whites in parliament or regulations prohibiting the overhaul of the civil service. [cxii]

Ohlson et al (1994) place the failure of negotiations at the door of the NP. They argue that in the wake of the referendum victory in March 1992, the NP attempted to push for the lion’s share of benefits, with the risk of not getting an agreement, instead of gaining mutual benefits from agreements with an adversary. [cxiii]

Although, Codesa 2 failed to provide a lasting agreement for the transition; it did achieve partial breakthroughs that formed the basis of the settlement between the NP and the ANC (in 1993), which allowed for elections in 1994. Much of the proposals that the ANC made in late 1992 and early 1993 came from learning the demands of the NP at Codesa. The transitional arrangements were taken almost completely from the proposals of Working Group 3. Furthermore, the basis of the settlement resulted from Codesa, a constituent assembly to meet ANC demands and binding constitutional principles for the NP. [cxiv]

The failure of Codesa 2 did have consequences for South Africa nonetheless. Ohlson et al (1994) argue that the NP hard line had alienated the ANC, weakened those within the ANC in favour of concessions, destroyed already low levels of trust, and influenced the ANC’s campaign of confrontation and mass action. Furthermore, Codesa distanced ordinary South African people from the negotiating process. The parties at Codesa kept expectations about a settlement high, but never fully informed the public about the necessary compromises or lack of progress on certain substantial issues. [cxv]

The Boipatong Massacre of 17 June 1992 highlighted the severity of the crisis in negotiations and in the country. It was to be followed by the Bisho massacre on 7 September 1992 in the Ciskei homeland. These events highlighted the crises taking place in the country and created a sense urgency for political role players to get back to the negotiating table. A Memorandum of Understanding would be signed by the ANC and NP in September 1992, and further progress was to be made in the next stage of multi-party negotiations in the form of the Multi Party Negotiation Process (MPNP) during 1993.

Endnotes

[i] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 312 – 315.

[ii] Ibid, 309.

[iii] Ibid, 309-310.

[iv] Ibid, 310.

[v] David Welsh, The Rise and Fall of Apartheid (Jeppestown: Jonathan Ball Publishers, 2009), 439.

[vi] Ibid, 439 – 440.

[vii] Ibid, 440.

[viii] Ibid.

[ix] Ibid, 440-441.

[x] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 312.

[xi] David Welsh, The Rise and Fall of Apartheid (Jeppestown: Jonathan Ball Publishers, 2009), 441.

[xii]Ibid, 442.

[xiii] Thomas Ohlson et al., The New Is Not Yet Born: Conflict Resolution in Southern Africa (Washington, D.C: The Brookings Institution, 1994), 151.

[xiv] David Welsh, The Rise and Fall of Apartheid (Jeppestown: Jonathan Ball Publishers, 2009), 442.

[xv] Ibid.

[xvi] Ibid, 443.

[xvii] Ibid, 438.

[xviii] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 109-110.

[xix] Ibid, 110.

[xx] Ibid, 110-111.

[xxi] Thomas Ohlson et al., The New Is Not Yet Born: Conflict Resolution in Southern Africa (Washington, D.C: The Brookings Institution, 1994), 150.

[xxi] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 111.

[xxiii] Ibid.

[xxiv] Thomas Ohlson et al., The New Is Not Yet Born: Conflict Resolution in Southern Africa (Washington, D.C: The Brookings Institution, 1994), 150.

[xxv] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 111-112.

[xxvi] Ibid, 112.

[xxvii] Thomas Ohlson et al., The New Is Not Yet Born: Conflict Resolution in Southern Africa (Washington, D.C: The Brookings Institution, 1994), 150.

[xxviii] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 113.

[xxix] Ibid, 113 -114.

[xxx] Ibid, 114.

[xxxi] Ibid, 115.

[xxxii] Ibid.

[xxxiii] Ibid.

[xxxiv] Ibid, 115-116.

[xxxv] Ibid, 116-117.

[xxxvi] Ibid.

[xxxvii] Ibid.

[xxxviii] Ibid, 117.

[xxxix] Ibid, 118.

[xl] Ibid.

[xli] Ibid.

[xlii] Ibid.

[xliii] Ibid, 119.

[xliv] Ibid.

[[xlv] Ibid, 119-120.

[xlvi] Ibid, 120.

[xlvii] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 319.

[xlviii] Thomas Ohlson et al., The New Is Not Yet Born: Conflict Resolution in Southern Africa (Washington, D.C: The Brookings Institution, 1994), 150.

[xlix] Ibid.

[l] Ibid, 150-151.

[li] Ibid, 151.

[ii] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 120-121.

[liii] Ibid, 121.

[liv] Ibid.

[lv] Ibid, 121-122.

[lvi]  Ibid, 122.

[lvii] Ibid.

[lviii] Ibid, 124-125.

[ix] Ibid, 125.

[lx] Ibid.

[lxi] Ibid, 125-126.

[lxii] Ibid, 126.

[lxiii] Ibid.

[[lxiv] Ibid, 126-127.

[lxv] Ibid, 127-128.

[lxvi] Ibid, 128.

[lxvii] David Welsh, The Rise and Fall of Apartheid (Jeppestown: Jonathan Ball Publishers, 2009), 446-447; and Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 128.

[lxviii] David Welsh, The Rise and Fall of Apartheid (Jeppestown: Jonathan Ball Publishers, 2009), 446-447; and Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 128.

[lxix] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 128-129.

[lxx] Ibid, 128.

[lxxi] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 321.

[lxxii] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 129.

[lxxiii] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 322.

[lxxiv] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 129-130.

[lxxv] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 322.

[lxxvi] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 130.

[xxvii] Ibid.

[lxxviii] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 321.

[lxxix] Ibid.

[lxxx] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 128-129.

[lxxxi] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 322.

[lxxxii]Ibid.

[lxxxiii] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 133.

[lxxxiv] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 322-323.

[lxxxv] Ibid, 323.

[lxxxvi]Ibid.

[lxxxvii] Ibid, 324.

[lxxxviii] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 133-134.

[lxxxix] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 326-327.

[xc] Ibid, 327.

[xci] Ibid, 328.

[xcii]Ibid.

[xciii] Ibid, 328-329.

[xciv] Ibid, 329-330.

[xcv] Ibid, 330.

[xcvi] Ibid.

[xcvii] Ibid, 333-334.

[xcviii] Ibid, 331.

[xcix] Ibid, 334.

[c] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 135.

[ci] Ibid, 318

[cii] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 334.

[ciii] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 135

[civ] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 334.

[cv] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 135.

[cvi] Anthea Jeffery, People’s War: New Light on The Struggle for South Africa (Jeppestown: Jonathan Ball Publishers, 2009), 334-335.

[cvii] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 135-136.

[cviii] Ibid, 136.

[cix] Hassen Ebrahim, The Soul of a Nation: Constitution-Making in South Africa (Cape Town: Oxford University Press, 1998), 136-137.

[cx] Thomas Ohlson et al., The New Is Not Yet Born: Conflict Resolution in Southern Africa (Washington, D.C: The Brookings Institution, 1994), 152.

[cxi] Ibid, 152-153.

[[cxii] Ibid, 153-154.

[cxiii] Ibid, 154.

[cxiv] Ibid.

[cxv] Ibid 


References:
• Ebrahim, Hassen. The Soul of a Nation: Constitution-making in South Africa. Cape Town: Oxford University Press, 1998.
• Jeffery, Anthea. People's War: New Light on the Struggle for South Africa. Jeppestown: Jonathan Ball Publishers, 2009.
• Ohlson, Thomas, and Stephen John Stedman. The New is Not Yet Born: Conflict Resolution in Southern Africa. Washington, D.C: The Brookings Institution, 1994.
• Welsh, David. The Rise and Fall of Apartheid. Jeppestown: Jonathan Ball Publishers, 2009.

Last updated : 15-May-2017

This article was produced for South African History Online on 08-May-2017