It had taken nearly two years of talks almost exclusively between the ANC and the NP to address the obstacles preventing multi-party negotiations. The path to multilateral negotiation was now open. The only remaining issue was to agree what exactly the parties would be negotiating.
The importance of this phase was the commitment to the process of negotiation displayed by each party; by jointly defining the objectives of the negotiation, each party had a stake in the process itself. But this was not enough, for it was also necessary for each party to have some confidence about the outcome of these negotiations. This led to the formation of two alliances, each revolving around major contending parties.
The Patriotic Front
Between 25 and 27 October 1991 more than 400 delegates representing some ninety-two organizations converged in Durban to launch the Patriotic Front, a loose alliance of those parties, which had held an anti-apartheid position. It also included some black political structures that had previously collaborated with the NP government.
The decisions of this inaugural conference took the form of a declaration, comprising a joint programme for a negotiated transfer of power. The Patriotic Front's point of departure was that an interim government was a necessary element in this transfer of power, as the government, it was argued, did not qualify to oversee the process of democratizing South Africa. The interim government should at the very least control the security forces, the electoral process, state media, and denned areas of the budget and finance, and should secure international participation. The Patriotic Front confirmed a key tenet of the Harare Declaration, that only a constituent assembly, elected on a one-person-one-vote basis in a united South Africa, could draft and adopt a democratic constitution.
Delegates committed themselves to convene an all-party congress as soon as it was possible. In addition, they determined the conduct of Patriotic Front members attending such an all-party congress: on issues that enjoyed support by all members, they would act in accordance with the principles of 'unity in action' and 'unity of purpose', but where there was no consensus, each member would act independently.
To build on the success of the Patriotic Front conference, the ANC consulted those who had a stake in the process of multi-party negotiation. Meetings were held separately with the PAC, AZAPO, the DP, homeland leaders. Mass Democratic Movement organizations, religious leaders, and the NP. From these consultations it was agreed that negotiations be scheduled for 29 and 30 November 1991. These consultations also denned the agenda for such a gathering, including a climate for free political participation, general constitutional principles, the constitution-making body, an interim government, the future of the TBVC states, the role of the international community, if any, and relevant time-frames.
The period leading up to the Convention for a Democratic South Africa (CODESA) provided an important preview of the negotiations that were to follow. It was effectively a rehearsal of an experience that would be repeated several times before the adoption of the final Constitution. The process, particularly the public debate, generated a momentum and pressure of its own that went beyond the control of those who had initiated it. Multi-party negotiations require an engine, or a driving force, and this was found in the bilateral exchanges between the main players. However, political negotiation cannot be abstracted from the human actors involved, and because it is easier to negotiate those areas in which agreement is likely, the more difficult issues were dealt with last, usually in the last moments before settling the final agreement. Agreements are only ever concluded once the detail has been settled, and, as experience often showed, the trouble lay in the detail.
The significance of the Patriotic Front
The establishment of the Patriotic Front had an enormous impact on the negotiations, because it changed the shape of the negotiating table and the political balance of forces in favour of the ANC. Its demand in favour of an interim government and a constituent assembly became unassailable.
The government was obliged to concede the need for joint control over the transition, and the NP was prepared to consider amending the constitution to make this possible. However, if the amendments required were fundamental, the NP insisted on a referendum to confirm public support. According to Gerrit Viljoen, these amendments had to be negotiated. He argued that 'It could be that we negotiate and come to a conclusion that there must be a more authoritative body, and that will involve changes to the constitution. We have not rejected transitional arrangements involving a change in the constitution - provided it has been the result of negotiation. These changes would have to be introduced in a legal and proper way and not simply by way of a suspension of the constitution or abdication of power'. In this regard, the government repeated again and again that a constitutional hiatus should not be allowed.
The formation of the Patriotic Front raised another problem for the government, that of the balance of forces around the negotiating table, for now the government feared that the Patriotic Front would seize the initiative in negotiations. This was the first time since the NP had embarked upon the path of a negotiated solution that it was confronted with the difficult reality that it may have to relinquish the power it had enjoyed for over forty years.
By the end of October 1991 the ANC and the NP were debating which parties had to be invited to the all-party congress. The broad agreement was that all parties represented in Parliament, including those in control of homeland governments and independent territories, should attend. Regarding extra-parliamentary structures, the ANC, the PAC, AZAPO, the SACP, and the Indian Congresses had to be invited.
At the beginning of November 1991 the NP mooted the possibility of an 'interim constitution' that ensured a government of national unity' lasting for up to 10 years. This was an interesting solution that would satisfy the demands of all parties, but the proposal also revealed a fear that dominated NP thinking in forthcoming negotiations. A democratically elected constituent assembly might have denied the NP the ability to secure constitutionally entrenched guarantees to safeÂguard its interests. An interim government of national unity lasting for at least 10 years would secure a role for the NP as well. This was one of several options it considered.
An alternative was to consider the prospect of a referendum to confirm the agreements reached in multi-party talks and to postpone the election, as required in terms of the existing constitution, to 1995"The Patriotic Front, on the other hand, wanted to draft the constitution within six months and the interim government to last for not more than eighteen months.
An aspect of the multi-party talks discussed between the ANC and NP was the treatment of constitutional principles. While both the ANC and the PAC argued that multi-party talks should only negotiate broad, internationally accepted principles of democracy, the NP insisted on greater detail." This important debate continued for the next eighteen months. For the NP it was necessary to secure guarantees should it not enjoy sufficient influence in a democratically elected constituent assembly. While the NP tentatively accepted the possibility of an interim government and an elected constituent assembly, the battle was not lost, for it was still possible for the party to achieve the objectives it had set for itself. In the meantime, the form of the multi-party talks, their membership, and the question as to who was to convene and chair the meetings continued to be controversial.
To prepare for these negotiations the NP met its allies on 5 November 1991. At this meeting, Gerrit Viljoen was mandated to negotiate on their behalf with the ANC. A striking feature of this meeting was the presence of black leaders and the mandate given to the government. Ironically, except for Buthelezi, some of the leaders were founding members of the Patriotic Front.
Preparations for CODESA
On 13 November 1991 the first multi-party constitutional talks were scheduled for 29 and 30 November at the World Trade Centre in Kempton Park, Johannesburg. 16 This forum was called the 'ConvenÂtion for a Democratic South Africa' (CODESA). A steering committee and full-time secretariat dealt with preparations for the convention. It was resolved that the meeting be convened by the Chief Justice Mr. Justice Michael Corbett and two religious leaders, Johan Heyns of the Dutch Reformed Church, and Stanley Mogoba of the Methodist Church of Southern Africa.
Meanwhile, there was a surprise shift in DP policy. On 15 November the DP's National Congress voted in favour of a proposal put forward by Colin Eglin supporting an elected constitutional conference to draft the new constitution. He argued in favour of a four-phase approach: a multi party conference phase, a constitutional conference phase (drafting the constitution), a referendum phase (a mandate from the people), and an election phase (implementation of the new don).
The steering committee entrusted with planning for the talks encountered a number of problems that threatened them, one being the insistence by the IFP that only it, the National Party, and be responsible for managing the process of negotiation. The matter was resolved only after a meeting between Viljoen and Inkatha's national chairperson, Frank Mdlalose, at which they resolved to include representatives of each of the twenty-two parties attending the multi-party talks.
The PAC also had an opportunity to raise its concerns. Its National Conference decided that the multi-party talks had to be held outside of the country under an independent convener such as the United Nations, the Commonwealth, or the Organization of African Unity, and threatened to withdraw if this demand was not met. At the end of November, the PAC accused the ANC and the NP of reaching secret agreements and consequently violating the spirit of the Patriotic Front. Once again the question of mistrust emerged, creating suspicions about the bona fides of the negotiating partners.
Agreement eluded the parties until 20 November 1991 when the government, the ANC, and Inkatha jointly announced that the talks had been rescheduled to 20 and 21 December. However, Inkatha remained opposed to the two clerics, Stanley Mogoba and Johan Heyns, serving as conveners with the Chief Justice, preferring the Chief Justice to convene this meeting on his own.
Except for the Herstigte Nasionale Party (HNP) and AZAPO, all parties invited responded positively. Part of the agreement in the steering committee was that the government would attend as a sepaÂrate delegation from that of the NP. The government's confidence allowed it to announce that a referendum would be held in 1992 should sufficient progress be recorded in the talks.
CODESA I
The agreed agenda for the CODESA plenary consisted of general constitutional principles, a constitution-making body or process, transitional arrangements or interim government, the future of the TBVC territories, and the role of the international community. A novel approach was the decision-making mechanism agreed to. The standing rules prescribed that where consensus failed, a principle of 'sufficient consensus' would be applied.
Ten minutes before the end of the steering committee meeting, the PAC repeated its concern that all decisions were subject to bilateral agreements made between the National Party and the ANC. It felt sufficiently aggrieved to walk out of the talks. Despite a joint communiqué by the leaders of Angola, Botswana, Mozambique, Namibia, Tanzania, Zambia, and Zimbabwe urging the PAC to remain, the organization stubbornly refused. However, despite the acrimonious note on which the PAC left, the meeting was a success, and all the objectives set for the meeting were met. The Weekly Mail of 29 November 1991 stated, 'Today we celebrate. After almost two year's of waiting, representatives of former and current enemies will sit around a table at the All party Conference to forge a path to democracy in South Africa'.
The Sunday Times of 1 December 1991 stated in its editorial: 'When the formal process of drafting a new constitution for South Africa began on Friday the worst, in a sense, was already behind it. The fact that the major parties, with only one important exception, could be brought to the table in an atmosphere of reasonable amity was success enough'.
According to the editorial in the Sunday Tribune on 1 December, 'There can be no turning back. Nearly all the parties at the exploratory talks which ended in Johannesburg yesterday committed themselves firmly to constitutional negotiation. For that South Africans can heave a collective sigh of relief.
The next objective was the establishment of an interim government. For the NP, CODESA was an informal interim government capable of transformation into a formal executive body. In terms of the NP's proposals, a referendum would be required to support any major constitutional change. The ANC argued that the form of interim government it envisaged did not require major constitutional change. The course, it was hoped, would be for the form, powers, and responsibilities of an interim government to be settled at the first meeting of CODESA before being put to Parliament. However, details of these proposals were never spelt out dearly and remained vague for a long time.
Meanwhile, the IFP fired the first of many warning shots by serving notice of its demand that the KwaZulu government, the Zulu monarch, and the IFP be allowed to attend CODESA as three separate delegations. At the same time, the IFP also released its first draft constitutional proposals. According to Buthelezi, the proposals would be 'capable of adaptation to either the unitary or federal structure of government'. The proposals envisaged a division of executive power between the state president and a prime minister who would head a cabinet. On the subject of the legislature, Inkatha proposed a lower house 'elected by universal adult suffrage by means of proportional representation'. The prime minister, chosen from the majority party of a coalition in the lower house, would appoint the cabinet. A second house 'should represent the regions or states as well as any special interests which it is felt should be represented in the legislature'. Laws would require a majority in both houses and assent by the president. On the question of security forces, Inkatha was in favour of 'impartial, professional services owing allegiance to the constitution only'. The 'National Police' should be responsible to the prime minister. At the end of November the steering committee established three working groups to prepare for the plenary, focusing on CODESA's statement of intent and founding charter, the organization of CODESA, and the broad process of negotiation.
By the second week of December, hopes for a successful start to the negotiation were raised with the announcement of the presence of high level national and international observers. Both the ANC and the NP had by this time also produced their draft proposals of the declaration of intent, which was becoming a source of some controversy. The last paragraph of the ANC's draft of the declaration of intent stated, 'we agree that Codesa will establish an implementing mechanism (which shall include the government) whose task it will be to determine the procedures and draft the texts of all legislation and executive and administrative acts necessary to give effect to the decisions of Codesa'.
Until now, the NP had relied on the influence a multi-party structure could exert over the government. But in view of the proposals emerÂging, they were unwilling to accept a clause effectively giving CODESA the power to draft legislation to be rubber-stamped by Parliament. Mandela warned that progress in the talks depended on the decisions of CODESA having the force of law, since the ANC feared that without such a guarantee the talks would be reduced to no more than a 'talkshop'. The government, however, was unwilling to compromise the sovereignty of Parliament. As an option, NP Secretary-General, Stoffel van der Merwe, argued that this would not be the case if the decisions of CODESA were also made with the express acquiescence of the NP. The ANC rejected this as it would constitute a veto for the NP. The matter was finally resolved in a late-night bilateral meeting between the ANC and the NP on 18 December, where the government agreed that CODESA would draft the legislation needed to give effect to convention decisions. The government undertook to do everything in its power to have decisions of CODESA implemented.
However, the steering committee faced further problems. On 19 December Inkatha confirmed that Buthelezi, as a Zulu leader, was withdrawing from CODESA because the Zulu King, Goodwill Zwelithini, had not been invited to participate. Inkatha did agree, however, that it would still attend as a party.
The right wing too felt threatened by developments. The AWB even warned that it would 'prepare for war' if the government failed to consider its demand for a boerestaat. The only party represented in Parliament that did not attend was the Conservative Party. The leader of the CP, Andries Treurnicht, argued that the demise of the Soviet Union confirmed that nationalism was indeed the strongest historical trend of the present era. He went on to say, 'The CP wishes to warn those striving for an undivided South Africa - an artificial unitary state like the Soviet Union - to come to their senses in time and to recognise the right of peoples to self-determination and freedom'.
It is not surprising, therefore, that Mandela found it necessary to reassure white people that majority rule was not a threat, and to argue that the ANC was ready to make radical compromises to ensure that. 48 This, he proposed, could be done by guaranteeing a block of white seats in the post-apartheid parliament for a limited period, even though this would mean perpetuating a separate white voters' roll, as in the settlement hammered out at Zimbabwe's Lancaster House constitutional negotiation. Alternatively, the various political parties could enter into an agreement to have a 'government of national unity' for a given period after the first post-apartheid election, again ensuring that all race groups were represented. Such a compromise however was still subject to the fact that the ANC was not prepared to compromise on the principle of majority rule. Mandela also denounced De Klerk's new proposals for ten years of interim government as a 'trap'.
The first plenary session of CODESA took place on 20 and 21 December 1991. The Chief Justice and Justices Ismail Mohamed and Piet Schabort chaired the meeting, which was attended by nineteen organizations and political parties. Five remarkable statements characterized the first plenary. The first was the speech by Dawie de Villiers, speaking for the NP, in which he expressed 'deep regret' and officially apologized for the policy of apartheid. He said, 'It was not the intention to deprive other people of their rights and to contribute to their misery - but eventually it led to just that'.
The second statement was the compromise suggested by De Klerk when he signalled his government's agreement to an elected constiÂtuent assembly provided that it would also act as an interim government. This marked another significant shift in NP policy. The third remarkable feature of CODESA I arose at the end of De Klerk's intervention. By agreement with the ANC, De Klerk was to speak last, and he used this opportunity to lash out at the ANC for not terminating the armed struggle and thereby breaking the undertakings of the Pretoria Minute and the D. F. Malan Accord. Mandela responded using the angriest language to pass publicly between the two leaders, and lambasted De Klerk on the conduct of his government. This extraÂordinary exchange between the leaders provided a unique window to the tensions and the mistrust that existed between the parties during the process of negotiation. It was also one of its clearest expressions of democracy in action.
The fourth outstanding feature of this historic meeting was the Declaration of Intent. The Declaration was and remains an exceptionally important and historic document. It was not only the first political agreement that was arrived at democratically and made a break from the racially divided past, but it also firmly committed all parties to the basic principles of genuine, non-racial, multi-party democracy where the constitution is supreme and regular elections are guaranteed. In the South African context the statement was revoluÂtionary, and represented, in a sense, the 'preamble' to the first democratic constitution. All parties except the IFP and the governments of Ciskei and Bophuthatswana signed the declaration. The IFP felt that the reference to an 'undivided' South Africa in the declaration ruled out the option of a federal dispensation. However, both the IFP and Ciskei did sign the declaration later on, after an amendment was secured confirming that the offending term ('undivided') did not commit CODESA to a unitary state. As for Bophuthatswana, its leader, Lucas Mangope, argued that CODESA could not enter into any agreements affecting its territory without the formal agreement of the government of Bophuthatswana.
The fifth remarkable statement came in an address by parliamentary veteran Helen Suzman. She demanded that a greater role be given to women to prevent accusations of gender discrimination. In an address that embarrassed most delegations, she argued: 'Here we are in this great hall at a momentous time, and I can't believe my eyes and ears when I see the number of women in the room. As with racism, so with sexism - you can enact legislation, but despite this, racism and gender discrimination exists. When I look around, there are maybe ten out of 228 delegates who are women. Codesa, as a way forward, must include more women'. (Her censure induced immediate positive reaction from the participating parties, who from then on made a welcome effort to ensure gender representivity)
The first plenary established five working groups and a Management Committee, and resolved that the second plenary session of CODESA would take place in March 1992. The first working group considered the creation of a climate for free political participation and the role of the international community The second working group was mandated to explore constitutional principles and the constitution-making body. The third working group dealt with an interim government. The fourth working group was to debate the future of the homelands, and the fifth working group was to deal with time-frames.
Each party was entitled to two delegates and two advisers in each working group. However, the Management Committee consisted of one delegate and one adviser from each party. In all, CODESA involved more than 400 negotiators representing nineteen parties, administraÂtions, organizations, and governments. Each working group had a steering committee that attended to the agenda and the programme of work. Also, each working group tabled its reports through its steering committee and was directly accountable to the Management Committee. Agreements concluded were then tabled at the CODESA plenary for approval and ratification.
To assist the Management Committee in its work, a Daily Management Committee and a secretariat were established. The secretariat, consisting of Fanie van der Merwe and Mac Maharaj, was responsible for the implementation of the decisions of the Management Committee. Murphy Morobe headed the CODESA administration, and Dr Theuns Eloff assisted him. The administration was staffed by civil servants seconded by the Department of Constitutional Development and the Consultative Business Movement.
The Structure of CODESA I
One of the first issues that the Management Committee had to deal with was the question of representation at CODESA. The Management Committee had to consider applications by traditional leaders and a host of at least twenty other structures and organizations for membership. One such application came from Kwazulu's King Goodwill Zwelithini. De Klerk supported his right to attend and participate, but the position of the ANC was that this application should be considered in the same way as that of the other traditional leaders. The Management Committee agreed to establish a subcommittee to consider the merits of traditional leaders being represented.
The importance of the first plenary meeting of CODESA cannot be over-emphasized, for it represented the first formal multilateral meeting to negotiate a settlement of the conflict in South Africa. The meeting generated a great deal of confidence and enthusiasm, reflected in the behaviour of the parties and in the views expressed by economists and editorials in the media. The editorial in the Financial Times of 3 January 1991, entitled 'Progress in South Africa', said:
South Africa starts the New Year on a hopeful note. Progress in constitutional talks, coupled with tentative moves towards an interim government, represents the most important step in the country's transition to democracy since the release of Mr. Nelson Mandela, the African National Congress (ANC) leader, nearly two years ago.
The agreement on a set of constitutional principles, endorsed by delegates attending the inaugural session of the Convention for a Democratic South Africa (Codesa), is in itself encouraging. While the principles adopted are taken for granted in western democracies, they represent a revolutionary change for South Africa, incorporating as they do commitments to an adult franchise and a multi-party system, a bill of rights and an independent judiciary.