A history of the South African Constitution 1910-1996

The signing of the Treaty of Vereeniging at Melrose House, Pretoria, on 31 May 1902 by Douglas Macpherson

The New Constitution was negotiated between May 1994 and October 1996 in the country's first democratically elected convention, the Constitutional Assembly. However, the demand for a democratic constitutional dispensation was not new, and was in fact as old as South Africa itself. The Constitution was not a product solely of negotiation in the Constitutional Assembly. Experiences in other parts of the world played a role in its development, and many of its provisions are the realisation of years of struggle and are imbued with historical significance.

The history of this constitutional development spans nine decades between two major milestones, both peace treaties that ended conflict and gave birth to new constitutional orders. The first was the Treaty of Vereeniging of 31 May 1902, which ended the Anglo-Boer War and laid the basis for the adoption of South Africa's first constitution. This constitution was drafted in an unrepresentative convention. The second was the 1993 interim constitution, which has also been described as a peace treaty that ended conflict. Like the previous peace treaty, it laid the basis for a new constitution, only this time it was to be drafted in a democratically elected convention, the Constitutional Assembly.

There have been four Constitutions in South Africa

In 1910 Britain decided to withdraw from the government of South Africa and handed the country over to the white residents of South Africa. These people were the British settlers and the Boers. The first Constitution for the Union of South Africa was adopted in 1910. This gave rights to the white minority but took away the right to vote of the majority of South Africans.

In 1960 the white government held a referendum to decide whether South Africa would become a Republic. On 31 May 1961 South Africa was declared a Republic and the government adopted the second Constitution. This also took away the rights of black people.

In 1983 the government passed the third Constitution. This Constitution created the tricameral parliament, which meant there was a separate parliament for the White, Coloured and Indian groups. This Constitution excluded black people and automatically made them citizens of the homeland where they were born. They had no rights outside these homelands.

In 1994, twenty-six parties negotiated and adopted an interim Constitution that gave the vote to everyone. This Constitution lasted for two years. During that time the elected government worked as the Constitutional Assembly and had to draw up a final Constitution.

The birth of South Africa

The Anglo-Boer War, which began in 1899, resulted in the unification of four independent territories into the Union of South Africa. During this war, many African people associated themselves with the British in the hope of improving their lot.

According to Andre Odendaal, a prominent historian at the University of the Western Cape, 'in stating the reasons for their surrender in the discussions that preceded the Treaty of Vereeniging in May 1902, the Afrikaner leaders gave as a third reason the fact that "the Kaffir Tribes" inside and outside the Republics had almost all been armed and were fighting against them. ... A fortnight before the Republican surrender, General Botha had declared, "The Kaffir question is becoming daily more serious"' (Odendaal, 1984:36).

The Afrikaners were mistaken, however, for at least 37 472 African people were incarcerated alongside Afrikaners in British concentration camps. The British seemed to have much in common with the Afrikaners: in the Treaty of Vereeniging, clause 8 simply stated, 'The question of granting the Franchise to natives will not be decided until after the introduction of [Afrikaner] self-government'. The repeated pleas by African leaders to the British not to compromise the few pitiful rights they had in the Cape were ignored.

On 12 October 1908, exactly nine years after the outbreak of the Anglo-Boer War in 1899, a National Convention of white representatives from the four colonies assembled in Durban. Whites, who were until then at war with each other, united to form a government that excluded the African majority. Two major debates were to dominate the deliberations of these constitution makers: the 'Native question', and the choice between a federal and a unitary dispensation.

The latter debate cut across the racial divide. For the Afrikaner-ruled republics, a federation would mean that they could maintain their independence, and would not have to succumb to the liberalism of the Cape. The question was also vociferously debated in African newspapers (Izwi labantu, 1907 & Odendaal, 1984:95) and within African organizations. At the first meeting of the South African Native Congress held in August 1907, the members resolved:

That this Conference of the coloured people and natives of the Cape Colony assembly at Queenstown is of the opinion that in the event of the adoption of any form of closer union of the South African colonies:

(a) Federation is preferable to unification.

(b) That form of federation should be adopted in which the Federal Parliament exercises such powers only as are specifically given to it in the federal constitution.

(c) The Cape Franchise should be the basis of federal franchise.

(d) The basis of representation of the Federal Parliament should be the voters' list.

(e) The present so-called native territories (Swaziland, Basutoland and British Bechuanaland) should be regarded as outside Federal territory and under the protection of the Imperial government represented by the High Commissioner for such native territories, unless or until provision shall be made for the representation of such territories in the Federal Parliament by members elected on the same basis as in colonies forming the federation. (Odendaal, 1984:100)

While African people were not represented in the negotiation of the constitution, they were not prevented from petitioning the convention drafting it. The fear of losing what rights they did hold agitated many African people and boosted support for the few organizations that represented their interests. Upon the convergence of such interests, African organizations consulted with each other to find ways of influencing the convention. This, in part, laid the basis for a single national organization. In its submission to the convention, the Natal Native Congress declared:

We Natives of Natal, though loyal subjects of the Crown and sharing the burden of taxation, are labouring under serious disabilities by being excluded from free access to the Franchise, and having no efficient means of making our wants known to Parliament and no sav in matters regarding our most vital interests such as taxation and other things. We humbly beg, with regard to our future government, for some degree of representation in the Legislature. This would go far to remove all causes of complaint and make the Natives a more contented and devoted people under His Majesty's gracious rule. . . . Any scheme for the Closer Union of the Colonies under the British Crown should include a provision that representation should be accorded fairly to all sections of the community without distinction of colour, and that in Natal, as a precedent to any union with the other Colonies of South Africa, the native population should first be placed in the fair position Natives hold in the Cape Colony. (Odendaal, 1984:142)

The report of the National Convention, the draft South Africa Act, was released on 9 February 1909. Anticipating the negative approach of the constitution makers, the Orange River Colony Native Congress prepared for the first joint convention of Africans from the whole of South Africa, with the aim of formulating and publicizing its views on the union.

The draft South Africa Act was endorsed by the four colonial Parliaments and referred back to the National Convention at the beginning of May that year. However, not all parliamentarians supported it. In a debate in the Cape Parliament, W. P. Schreiner, who was also a supporter of equal rights, made an impassioned plea for non-racialism under the slogan, 'Union with honour':

The rights of the coloured people should not be bartered away from any benefit which the Europeans should get. 'Union with honour before all things. There was something pathetic in it that they should take the rights of others away, and make them a matter of bargaining, and say, 'If you do not give them up there will be no Union.....' He would stand out of Union rather than give up his trust in the matter. Federation, Unification etc. were questions of detail; but the question stood out as an absolutely essential one. ... Union without honour ... was the greatest danger any nation could incur. (quoted in Odendaal,1984:191-192)

After approval the draft constitution was submitted to Britain for assent by the Imperial Parliament, and African people saw this as a further opportunity to ensure that their interests were consulted. A delegation of leaders, including Schreiner, went to London and presented a petition to the House of Commons:

The Bill now before the Parliament of Great Britain and Ireland for the purpose of enacting a Constitution to unite the self-governing British Colonies of South Africa into a legislative union under the Crown would for the first time in the history of the legislation of that Parliament by virtue of the phrase 'of European descent' ... create a political discrimination against non-European subjects of His Majesty, and thus introduce for the first time since the establishment of representative institutions in the year 1852 into the Colony of the Cape of Good Hope a colour line in respect of political rights and privileges.

Your Petitioners are deeply disappointed at the extension of political and civil rights and privileges to the coloured people and the natives in the Transvaal and the Orange River Colony.

Your Petitioners feel aggrieved that solely on account of differences in race or colour it is contemplated by the proposed Constitution to deprive the coloured and native inhabitants of the colony of the Cape of Good Hope of their existing political rights and privileges. Your Petitioners fear that the franchise rights of the coloured people and the natives of the Cape Colony are adequately protected under the provisions of the proposed Constitution, but are indeed threatened by the provisions Clause 35.

Your Petitioners apprehend that by the racial discrimination proposed in the aforesaid Bill as regards the qualification members of the Union Parliament, the prejudice already existing in the Transvaal, the Orange River Colony and Natal, will accentuated and increased; that the status of the coloured people and natives will be lower, and that an injustice will be done to those who are the majority of the people in British South Africa, who have in the past shown their unswerving loyalty to Crown, their attachment to British institutions, their submission to the laws of the land, and their capacity for exercising full and political rights. (Schreiner papers: Appendix, & Odendaal,1984:224)

While the principle of the union was supported, the petitioners argued that 'the only practical and efficient means whereby fair an administration and legislation can be attained, peace, harmony and contentment secured, is by granting equal political rights to qualified men irrespective of race, colour, or creed'. Despite these protestations and petitions, the bill in the British House of Commons was passed on 19 August 1909.

It was however only on 31 May 1910, eight years after the Treaty ofVereeniging, that the Union of South Africa was inaugurated The constitution provided for an all-powerful government consisting only of white men, even removing the minimal voting rights which black people had previously held.

The new dispensation was seminal in the development of South Africa's constitutional history. Quite aside from being the first constitution, it gave rise to two parallel streams of constitutional thought would dominate the country's political and social history. One stream of thought developed within the framework of the established status quo, while the other was shaped by the struggle of the majority for a system free of discrimination.

This constitution allowed the government to quickly introduce a series of legislative measures, including the infamous 1913 Land Act, effectively to dispossess and disenfranchise African people. The response of the African people was to unite under a single body that would pursue their interests. One of the pioneers in this regard was Pixley Ka Isaka Seme, a lawyer trained in Britain, who immediately set about the establishment of a 'Native Union'. He called for a congress that would get 'all the dark races of this subcontinent to come together, once or twice a year, in order to review the past and reject therein all those things which have retarded our progress'. He made a significant appeal for the unity of the African people: 'The demon of racialism, the aberrations of the Xhosa-Fingo feud, the animosity that exists between the Zulus and the T[s]ongas, between Basothos and every native, must be buried up and forgotten; it has shed among us sufficient blood. We are one people. These divisions, these jealousies are the cause of all our woes and all our backwardness and ignorance today'. (Rive & Couzens,1991:9-10 & Walshe,1971:33)

The call made by Seme was answered with the formation of the African National Congress (ANC) on 8 January 1912. The birth of the ANC provided the African majority with a united leadership that articulated their plight and led their resistance, but more importantly, it provided African people with a vision of a better life. Almost invariably the struggles they fought were against a constitutional dispensation that provided the legal basis for their oppression. Accordingly, their vision also included a just and democratic constitutional dispensation.

The rise of nationalism

The Union of South Africa also meant economic cohesion between previously separate and competing economies, affording the British-owned mines greater access to cheaper labour and the ability to transport their goods to harbours for international export. As a result, constitutional and legislative development focused on the restriction of social interaction, and limited the access of African people to skills and the market to such an extent that they became no more than cheap labour. Along with industrialization and the development of the economy came urbanization, greater segregationist laws, and a growing militancy among workers.

This economic boom was soon threatened by a post-war economic crisis, which resulted in great social upheaval. An example of this crisis was the drop in the price of gold from 130 shillings an ounce in 1919 to 95 shillings in 1921. To maintain profitability, the Chamber of Mines decided to reduce its white work force by employing semi-skilled black workers at lower rates of pay, inadvertently fostering conflict between black and white workers.

Politically, the formation of the Union of South Africa made possible the development of nationalism among white and black people alike. The previously separate African tribes were presented with a common authority that sought to disenfranchise them; in other words, they now had one enemy. The Union's new dispensation also paved the way for an economy that was increasingly dependent on a common working class. As a result, this period also saw the rise of the South African Communist Party (SACP), which already had a growing base amongst the white working class. In December 1928 the SACP formulated a new rallying call: A South African Native Republic as a stage towards a workers' and peasants' government with full protection and equal rights for all national minorities'.

The 'Native Republic' thesis was developed after the Communist International discussed the situation in South Africa at its sixth congress. The concept was developed further by the South African Communist Party. The annual report of the party dated 31 January 1929 dealt with the 'Native Republic' thesis. Its programme issued on 1 January 1929 clearly reflects how the adoption of this thesis translated into actual demands. 

This was the seed for the concept of majority rule in South Africa, and it provided a basis for the theoretical development of the African nationalism that would develop in the following years. It was based on the following argument:

The overwhelming majority of the population is made up of Negroes and coloured people (about 5 500 000 Negroes and coloured people and about 1 500 000 white people according to the 1921 census). A characteristic feature of the colonial type of the country is the almost complete landlessness of the Negro population: the Negroes hold only one-eighth of the land whilst seven-eighths have been expropriated by the white population. There is no Negro bourgeoisie as a class, apart from individual Negroes engaged in trading and a thin strata of Negro intellectuals who do not play any essential role in the economic and political life of the country The Negroes constitute also the majority of the working class: among the workers employed in industry and transport, 420 000 are black and coloured people and 145 000 white; among agricultural labourers 435 000 are black and 50 000 are white. (Extract from a resolution on 'The South Africa Question' adopted by the executive committee of the Communist International following the Sixth Comintern Congress)

The social transformation brought about by the replacement of expensive white, particularly Afrikaner labour with cheaper black labour saw the development of a growing number of poor whites. White people demanded further segregation and job reservation laws, and these demands in turn encouraged the development of Afrikaner nationalism. At the same time, the development of an urban African working class allowed for greater unity.

The development of a vision

In August 1941 Franklin D. Roosevelt and Winston Churchill signed the Atlantic Charter. This agreement contained eight principles: renunciation of territorial aggression; no territorial changes without consent of the peoples concerned; restoration of sovereign rights and self-government; access to raw materials for all nations; world economic co-operation; freedom from fear and want; freedom of the seas; and the disarmament of aggressors. These principles inspired the emerging African nationalists of South Africa, for it raised the general issue of basic rights and, more particularly, the question of self-determination. Drawing from the Atlantic Charter, the ANC drafted its own 'African Claims', which demanded full citizenship, the right to land, and an end to all discriminatory legislation. This was the first time that the concepts of fundamental rights or self-determination were considered demands.

The Atlantic Charter was an Anglo-American statement of common principles issued on 14 August 1941 by United States President, Franklin D. Roosevelt, and British Prime Minister, Winston Churchill. They had conferred for four days (9-12 August) abord the U.S.S. Augusta off Newfoundland. Although the United States had not yet entered World War II, the statement became an unofficial manifesto of American and British aims in war and peace. The charter's principles were endorsed by 26 allies in the United Nations Declaration signed in Washington D.C. on 1 January 1942.

In 1948 the National Party (NP) came to power, introduced the policy of apartheid, and enacted such notorious laws as the Suppression of Communism Act, the Group Areas Act, the Separate Registration of Voters Act, the Bantu Authorities Act, the pass laws, and the stock limitation laws. Apartheid provoked resistance. In response to these laws, the African, coloured, and Indian people found cause to unite in action, and launched a defiance campaign in 1952. The campaign commenced on 6 April 1952, the 300th anniversary of the arrival of van Riebeeck, a leader of the first Dutch settlers in South Africa.

On 26 June 1955 the Congress of the People took place, a meeting to which all political parties were invited. After nation-wide consultation, several thousand delegates met in Johannesburg to draft the Freedom Charter, which was in effect the first draft of a new constitution for South Africa. The political movement of the oppressed majority had finally matured, graduating from a simple opposition to a movement with leadership and solutions. This charter, particularly its opening paragraph, sketched a vision of what the country's political landscape ought to be, a vision that was to become deeply etched in the thinking of several generations of political leaders. The inspiration provided by the Charter can be seen clearly in the drafting of the final Constitution. Its opening paragraph states:

We, the People of South Africa, declare for all our country and the world to know: that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people; that our people have been robbed of their birthright to land, liberty and peace by a form of government founded on injustice and inequality; that our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities; that only a democratic state, based on the will of all the people, can secure to all their birthright without distinction of colour, race, sex or belief.

The demand for a national convention

In May 1957 the ANC President-General, Albert Luthuli, made an impassioned appeal for a national convention that would allow representatives from all sections of the population to meet to discuss the conflict and look at solutions. His appeal was ignored.

On 16 December 1960 a Consultative Conference of African Leaders was held in Orlando, Soweto, when forty African leaders met with liberal and progressive whites. This conference rejected the establishment of a republic and made a call to the African leadership to attend an 'all-in conference', with the purpose of demanding a call for a nation convention. This convention had to be representative of the people South Africa, and it had to consider a new political dispensation and individual fundamental rights.

On 25 March 1961 the All-in Conference met and called for the negotiation of a democratic dispensation. Fourteen hundred delegates from all over the country representing 150 different religious, social, cultural, and political bodies gathered. At this conference, Nelson Mandela's call for a national convention of elected representatives to determine a new non-racial democratic constitution for South Africa was adopted. The conference resolved that:

1. WE DECLARE that no constitution or form of government decided without the participation of the African people who form an absolute majority of the population can enjoy moral validity or merit support either within South Africa or beyond its borders.

2. WE DEMAND that a National Convention of elected representatives of all adult men and women on an equal basis irrespective of race, colour, creed or other limitation, be called by the Union government not later than 31 May 1961; that the convention shall have sovereign powers to determine, in any way the majority of the representatives decide, a new non-racial democratic constitution for South Africa. (Karis & Carter, 1977)

The conference also directed Mandela to draw Prime Hendrik Verwoerd's attention to the resolution. In a letter to the Prime Minister, Mandela referred to the rising tide of unrest in many parts of the country, and stated that 'It was the earnest opinion of the Conference that this dangerous situation could be averted only by calling of a sovereign national convention representative of Africans, to draw up a new non-racial and democratic Constitution. Such a convention would discuss our national problems in a sober manner, and would work out solutions which sought to preserve and safeguard the interests of all sections of the population'.

Unfortunately, this call, like Luthuli's, went unheeded. In an attempt to gain further support for the idea, Mandela addressed a further letter to the leader of the parliamentary opposition, Sir de Villiers Graaf:

We can see no workable alternative to this proposal, except that the Nationalist Government proceeds to enforce a minority decision on all of us, with the certain consequence of still deeper crisis, and a continuing period of strife and disaster ahead. Stated bluntly, the alternatives appear to be these: talk it out, or shoot it out. Outside of the Nationalist Party, most of the important influential bodies of public opinion have clearly decided to talk it out. The South African Indian Congress, the only substantial Indian community organisation, has welcomed and endorsed the call for a National Convention. So, too have the Coloured people through the Coloured Convention movement which has backing of the main bodies of Coloured opinion. A substantial European body of opinion, represented by both the Progressive and the Liberal Parties, has endorsed our call. Support for a National Convention has come also from the bulk of the English language press, from several national church organisations, and from many others.

But where, Sir, does the United Party stand? We have yet to hear from this most important organisation - the main organisation in fact of anti-Nationalist opinion amongst the European community. Or from you, its leader. If the country's leading statesmen fail to lead at this moment, then the worst is inevitable. It is time for you, Sir, and your Party, to speak out. Are you for a democratic and peaceable solution to our problems? Are you, therefore, for a National Convention? We in South Africa, and the world outside expect an answer. Silence at this time enables Dr. Verwoerd to lead us onwards towards the brink of disaster.

further letter to the leader of the parliamentary opposition, Sir de Villiers Graaf link to Document 10

This appeal also came to nought, and the tension in the country had reached breaking point. A successful national general strike was called with the start of a massive defiance campaign, during which more than 10 000 people were arrested. There were clear signs of frustration on the part of the African nationalists. The change of tone between the letters by Luthuli in 1957 and those of Mandela in 1961 clearly reflect a growing militancy in ANC thinking. On 31 May 1961 the government, after holding a whites-only referendum, declared South Africa a republic.

This marked a decisive break in South Africa's history, for the country was to slide into an armed conflict lasting 30 years. Instead of heeding the advice of the All-in Conference, the government banned the ANC and other organizations, and left them with no legal avenue to pursue their interests. They found they had no option but to resort to armed struggle. The ANC had been transformed from a non-violent African nationalist organization into a revolutionary liberation movement. By 1964, most of the ANC's leaders were jailed and the resistance seemed effectively silenced. However, this silence did not last.

The ANC's 'Guidelines on Strategy and Tactics', which was produced at the organization's National Conference in Morogoro, Tanzania, in 1969 provides a clear explanation of the revolutionary armed strategy the ANC was to pursue.

The politics of reform and repression

In June 1976 the government met its fiercest resistance yet from students protesting against the imposition of Afrikaans as a medium of education. Several hundred students were killed in the uprisings that ensued and South Africa became a focus of attention throughout the world as apartheid was condemned internationally. Thousands left the country to join the liberation movements, and the armed struggle gained momentum. The government was obliged to prove willingness to reform.

Upon coming to power in 1978, Prime Minister (and later President) P. W. Botha began reorganizing the state. One of the significant developments was the creation of a new government department, Department of Constitutional Development and Planning. This department was mandated to introduce 'reforms' while the security establishment took over the major strategic decision-making responsibilities of the state (Swilling & Phillips,1989:114). This unusual delegation of tasks was given effect through the creation of a multi-tiered, interdepartmental structure dominated by the military but staffed by civilians, called the National Security Management System (NSMS). The role of the NSMS was to address economic and social problems in local 'hotspots', in a designed to win the support of the populace in a given area. The idea was that this would isolate those responsible for 'political unrest' and leave them to the mercy of the state's repressive might.

As part of Botha's reform strategy, the next major constitutional development took place in 1983, in the form of a new Tricameral Parliament and a President's Council. Parliament was made up of three houses: the white House of Assembly, the coloured House of Representatives, and the Indian House of Delegates. Africans were excluded from this dispensation. Differences between the three houses were referred to the President's Council.

Botha's regime was characterized by a dual approach to the growing militancy of the anti-apartheid forces - reform and repression. It was a method informed by Botha's militarized style of government, learnt while in office as Minister of Defence, and drawing on the strategies of the military dictatorships of Latin America.

The NSMS, which was initiated in 1979, and the 1983 constitution reforms initiated by Chris Heunis, Minister of Constitutional Affairs and Planning, were manifestations of a shift in National Party (NP) thinking and strategy. While maintaining the apartheid project, the NP had begun to focus more closely on other cleavages that could be exploited within the black community. The reform packages that characterized the 1980s were aimed at creating a group of 'urban insiders', which were a small, privileged African elite who could act as a buffer against the majority of black South Africans (Cock & Nathan, 1989:139). This was the aim that informed both the Riekert and Wiehahn Commissions and the 1983 constitution.

The reform and repression approach employed by the NP, at its most sophisticated in the form of the NSMS, created a brief respite for the Botha regime, for it was able to quell some of the political turmoil of the mid-eighties, and to illustrate the sophisticated might of the apartheid state. In retrospect, it appears that at this point in South Africa's history an impasse had been reached. The NSMS clearly showed the military might of the South African regime, ruling out the possibility of any successful military victory by the anti-apartheid forces. On the other hand, real tensions were developing within the state itself as securocrats and political reformers began plotting different trajectories for South Africa's future.

The strategy of reform and repression had only limited success. Armed resistance intensified, and by 1984 armed actions had risen to an average of fifty operations per year. In 1985 the ANC first deployed landmines and began to develop a presence in rural areas. The organization declared 1986 the year of the people's army, Umkhonto we Sizwe (MK). As alternative township structures, street committees, and people's courts began functioning in many areas, the state, whose agenda was dominated by insurrectionary politics, was struggling to govern much of the country. The next step for the resistance was 'the transformation of armed propaganda into a people's war'. The Bethal trial of ANC underground activists exposed the elaborate plans the ANC had developed for its revolutionary warfare (Moss,1988:3). From 1986 onwards the number of attacks rose to between 250 and 300 per year. It was also during this period that a vigorous debate arose within the liberation movement between those who argued for an 'insurrectionary people's war' and those who wanted a war to force the regime to the negotiating table (Lodge,1989:42).

The search for constitutional solutions

It was in this context that the first exploratory discussions began in 1985 between Nelson Mandela and representatives of P. W. Botha's government. It had become apparent to Botha that the crisis in South Africa was reaching unmanageable proportions, and that drastic political changes had to take place. He also realized that constitutional changes would have to include representatives of the black majority. In August 1985 he was confronted with a choice between two broad approaches: he could release political leaders and start a process of genuine negotiation, or he could consult with representatives hand-picked by himself in a process that he could manage, and be reasonably certain of a satisfactory outcome. Botha was not bold enough for negotiation, and chose the latter; he was not yet prepared to cross the Rubicon. However, this arrogance did not last much longer.

The period saw a similar attitude in South Africa's relationship with its neighbours. Until the first quarter of 1988 South Africa carried out a brutal campaign of aggression and destabilization against its southern African counterparts. However, the balance of forces in the region was to be altered by a historic military defeat suffered by the South African Defence Force (SADF) that year at Cuito Caunavale in Angola. The defeat proved that South Africa's military might was not invincible after all. The effect was immediate: 'In the first week of May, South African negotiators travelled to London for the first of several rounds of talks on Angola and Namibia with officials from Angola, Cuba and United States. These resulted in an agreement over the withdrawal of SADF troops from Angola (completed on 30 August 1988), followed by accords signed in Brazzaville and New York (on 13 and 22 December respectively) providing for Namibia to begin its transition to independence in accordance with United Nations Security Council Resolution 435 of 1978 on 1 April 1989' (Davies,1989:155).

Botha now had further incentives to seek solutions to the crisis. On 21 April 1988 he outlined a new constitutional framework for the country based on a federal or confederal structure that would enable black people to be co-opted into the political process as far as the cabinet. The proposal included: the creation of black regional bodies representing black people outside the homelands; the appointment of a prime minister; that 'recognizable' black leaders be co-opted as cabinet members; the establishment of a national council referred to as the 'Great Indaba' ('indaba' is Zulu for a gathering or council); and the downgrading of the President's Council to a part-time body. Part of the responsibility of the 'Indaba' would be to negotiate a new constitution for consideration by the white Parliament.

The demand for a negotiated settlement

Two overriding principles shaped Botha's proposals: the first was the NP's determination to retain political control, and the second, to continue the separation of races. Whites would continue to control all decision-making structures, which were essentially undemocratic. The result was that the proposals were roundly condemned. Until this stage, the demands made by the anti-apartheid movement had been for the release of political prisoners, free political activity, the unbanning of political organizations, and a universal franchise. What changed was the reintroduction of a demand first made in March 1960 for the negotiation of a new constitutional dispensation with the true representatives of the people.

The government's constitutional proposals took shape during June and July 1988 when a package of several bills was introduced. Among these were the Promotion of Constitutional Development Act, the Extension of Political Participation Bill, the Group Areas Amendment Bill, the Free Settlement Areas Bill, and the Local Government Affairs in Free Settlement Areas Bill. The primary purpose of the reforms brought about by these laws was to strengthen the hand of 'moderate' black people and pave the way for their involvement in the constitution-making process. Black 'moderates' had a great deal to gain by these proposals, for it provided them with unprecedented powers over townships. The lifting of restrictions imposed by the Group Areas Act would appease a significant number of moderate coloured and Indian people, and it was hoped that the changes brought about by these reforms would also make it possible for moderate black leaders to participate in the proposed national council. The objective of this council would be to produce a constitution that would win the hearts and minds of the majority.

But this was not to be, for a constitutional crisis developed when the Houses of Representatives and Delegates, in a move that amounted to filibustering, refused to allow debate on the Group Areas Act. The government's response was to change the rules of Parliament and force the legislation through, raising a storm of protest. Botha failed to obtain the support of even moderate black leaders.

At the same time, political parties both inside and outside the country were revising their views on a constitution for the country After two years work, the ANC published the main provisions of constitutional vision, which included the establishment of a democratic state that guaranteed rights and freedoms on the one hand, and promoted affirmative action on the other.

The constitutional vision of the Progressive Federal Party (PFP) was also being reviewed. Its policy proposed a government based on geographic federation with universal franchise, but with various checks and balances to prevent majority rule, including a bill of rights and a minority veto over cabinet decisions. The PFP also saw the constitutional dispensation negotiated at a national convention.

In August 1988 the spotlight fell on Mandela when he was hospitalized with tuberculosis at Tygerberg Hospital, and speculation about the release of political prisoners and the unbanning of the ANC intensified. In the meantime, a power struggle was taking place with the NP: Botha's ill health provided an opportunity for the party to look to new leadership in the figure of F.W. de Klerk. Soon after taking over, De Klerk committed himself to seeking a new constitution that would offer 'full participation' to all South Africans in a new federal constitutional dispensation. Its goals would be to eliminate the domination of any one group by another; the maintenance of community life in a non-discriminatory manner; a strong economy based on free enterprise and competition; social and economic upliftment for the communities suffering backlogs; and the firm maintenance of law and order. In this regard, he recognized the need for inclusive negotiation among the leaders of the different parties. However, De Klerk remained implacably opposed to a one-person-one-vote system, which he argued would lead to domination by the majority.

The Minister of Constitutional Development and Planning, Chris Heunis, voiced similar sentiments as the white electorate prepared go to the polls on 6 September of that year. This election provided De Klerk's government with a mandate to proceed with the new constitutional proposals; it was also to be the last whites-only general election. The demand for constitutional negotiation was developing a momentum of its own. Contemporary events in Eastern Europe around the 'collapse' of communism were also relevant: the world seemed to be going through a process of tremendous and far-reaching change, and South Africa was an integral part of it.

To prepare for the forthcoming elections, the NP on 29 June 1989 published its five-year plan. There was a deliberate lack of detail in its provisions. It confined itself to general statements that pointed to various reforms, such as a bill of rights which allowed for group rights; the engagement of 'recognised leaders of all groups' to negotiate a new dispensation; a review of the functions and powers of the head of state; the promotion of 'self determination regarding own affairs', along with joint decision-making on 'general affairs', by means of the division and devolution of power in a non-discriminatory manner; and a vote for black people within five years. Despite the lack of detail, the policies of the NP were beginning to look more like those of the Democratic Party (DP), the recently remade and renamed PFP. Most importantly, the NP had started to question many of its own earlier beliefs.

Black leaders rejected the plan, insisting that apartheid be scrapped altogether to create a climate conducive to negotiation. The plan also received attention in the British media, and they too were disappointed. According to an editorial in the Star, 'The Nationalist government is chasing a train that has already left the station. Where it intends to be five years from now is where it should have been a decade ago'. However, the positive aspect was that 'The plan envisages negotiation with black South Africans and it offers black people a vote at national level within five years. This is an encouraging shift, especially following years of oppressive apartheid and erosion of the rule of law'.

By this time, influential sectors in society, including business, religious bodies, youth organizations, and academics were holding consultations with the ANC in various African countries in defiance of South African law. These meetings considered issues such as violence, sanctions, constitutional models, the economy, and the role of whites in the transformation and future of South Africa, issues that the South African public was debating and wanted leadership on. The NP lacked the boldness or confidence required to provide such leadership, and hesitated in breaking with its apartheid past and its obsession with group rights.

Nonetheless, the 1989 election was a resounding success for De Klerk, one which he interpreted as a mandate for reform. In the second week of September De Klerk felt confident enough to allow a protest march by 30 000 people on the city hall in Cape Town, led by Archbishop Desmond Tutu and Alan Boesak, a cleric and prominent leader in the United Democratic Front. This marked the relaxation of restrictions on protest action, and 'petty apartheid' legislation was no longer stringently enforced.

In another development, the Department of Constitutional Development and Planning was streamlined under the leadership of Gerrit Viljoen to deal specifically with the process of negotiation. He was the leader of the Broederbond and the government's chief ideologue, negotiator, and spokesperson on constitutional matters. He was one of the most influential people in the shaping of the development of government and National Party strategy. The department began looking at various constitutional models, and all major government speeches now spoke of a 'new South Africa'. The continued state of emergency, incarceration of political prisoners, and ban on a number of political parties, however, remained obstacles in the way of negotiation. There was a determination to effect certain changes, and for these De Klerk had the public support of Dr Zach de Beer, the leader of the Democratic Party.

The beginning of October 1989 saw the government's international allies intensify the pressure for change. British Prime Minister Margaret Thatcher looked to the South African government to provide her with sufficient grounds to stave off demands made by Commonwealth leaders for tougher sanctions. In the United States, the Assistant Secretary of State, Herman Cohen, set out state policy options on South Africa, which included demands that the South African government unban political parties, lift the state of emergency, allow for the return of exiles, remove all discriminatory legislation, and begin negotiating with credible black leaders on a new constitutional order by June 1990. Internally, even the Inkatha Freedom Party (IFP) refused to negotiate until these obstacles were removed. Weeks later, the government unconditionally released several senior political prisoners.

One of the difficulties the government faced was recognizing the ANC as a major negotiating partner. Hence, the government's chief negotiator, Gerrit Viljoen, mooted the idea of an election among black people outside the homelands to choose their negotiating leaders, a proposal which the Mass Democratic Movement (MDM) and other major organizations immediately rejected. Walter Sisulu, one of the ANC leaders released in October 1989, denounced the government's plan to lift the state of emergency and to repeal the Separate Amenities Act as not enough to start a process of genuine negotiation. According to him, in order to create a basis for discussions the government had to release political prisoners, unban organizations like the ANC, withdraw troops from the townships, and scrap all undemocratic laws. He described Gerrit Viljoen's plans to hold elections to identify black leaders as ridiculous, and even the homeland leaders were opposed to this idea.

On 10 November 1989 a high-powered delegation of business leaders from the Associated Chambers of Commerce and Industry (ASSOCOM) met with De Klerk to urge him to speed up the process of constitutional reform. The accumulated pressure of South Africa's political crisis, right-wing resistance, economic concerns, the changing political situation in Eastern Europe, and the international community led De Klerk to the inescapable conclusion that clinging to power would only lead to a bloody conflict. Thus, in November 1989, he called for an accord among all peoples of the country that would offer full political rights to everyone. He argued that nowhere in the world had a minority been able to cling to power without facing a revolution. The demand for the creation of a climate conducive to negotiation could not be refused: there was simply no other option open to the government.

The pressure on De Klerk did not let up. By early December critics in the United States were still not convinced that the changes were sufficient, and regarded them as merely cosmetic. De Klerk sought to lower the expectations made of his government and asked for greater latitude, arguing that his government was different from that of his predecessor, and that, only a few months in power, he needed time to effect change.

To add to the woes of the South African government, the United Nations (UN) General Assembly was to hold a special session from 12 to 14 December 1989 to consider a declaration on apartheid and its destructive consequences for southern Africa. The twelve leaders the European Community (EC) also met in Strasbourg, and after a two-day summit issued a declaration adopting economic measures to ban the promotion of tourism to South Africa and the import of certain South African goods. While De Klerk's commitment to reform was recognized, it was stated that 'these measures, however, are insufficient with respect to the immense task posed by the dismantling of apartheid'.

In response to the mounting pressure, De Klerk and his cabinet held a special work session on 4 and 5 December 1989. Some of the matters considered included the release of Mandela and other prisoners, unbanning of political organizations, constitutional proposals, and the announcement De Klerk was to make at the opening of the new parliamentary session on 2 February 1990. After this meeting Minister of Constitutional Development and Planning, Gerrit Viljoen declared that group rights were no longer a non-negotiable demand the government in constitutional negotiation. This was one of the most significant policy shifts in NP thinking.

The momentum generated by the demand for constitutional negotiation was further intensified by the Conference for a Democratic Future that started its work on 8 December 1989. The conference, organized by the Mass Democratic Movement (MDM), was attended by more than 6 000 delegates from throughout the country representing 2 000 organizations. Even eleven affiliates of the National Congress of Trade Unions (NACTU), an Africanist union federation, defied its central committee and attended the conference. Parties and leaders from various homelands were also present.

Speaking at the conference's opening session, Walter Sisulu invited De Klerk to attend its deliberations and urged the government to abandon the ideas of a 'Great Indaba' and a 'black election'. He confirmed the commitment of the United Democratic Front (UDF), MDM, and civil society to the demands set out in the Harare Declaration, and called on the government to create the necessary climate for negotiation to take place. The conference adopted a resolution and recommitted delegates to intensify the pressure on the government to commit itself to genuine negotiation. A call was also made to the international community to maintain the pressure already mounted on the South African government.


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Last updated : 11-Aug-2017

This article was produced for South African History Online on 21-Mar-2011