Constitution history

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 r 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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