THE SOUTH AFRICAN CONSTITUTIONAL NEGOTIATIONS
Synopsis
The negotiations had four distinct phases, each in its own way indispensable for the success of the process.
The first phase, between 1985 and 1989, included a number of unofficial and semi-official contacts between South African businessmen, academics, journalists and community leaders. At the same time Nelson Mandela and the South African government began discussions on a negotiated solution that culminated in 1989 in meetings between him and Presidents P W Botha and F W de Klerk, and finally in direct secret talks between the National Intelligence Service and the ANC in Switzerland. These talks played an important role in enabling the main parties to assess one another’s intentions and concerns – and to start with the difficult process of building mutual trust and confidence.
The second, preparatory, phase followed the launching of the negotiation process by President De Klerk on 2 February 1990. It included the Groote Schuur, Pretoria and D F Malan meetings which dealt primarily with the granting of indemnity to ANC cadres to enable them to return from exile to participate in the negotiations, and the suspension of the ANC’s armed struggle.
The preparatory talks also dealt with the escalating violence that presented a serious obstacle to the commencement of formal negotiations. The problem of violence was addressed by the adoption of the National Peace Accord on 14 September 1991.
The third phase of the negotiations, the multiparty CODESA talks, commenced on 21 December 1991 with the adoption of a Declaration of Intent which spelled out the participants’ common commitment to the establishment of a non-racial constitutional democracy. CODESA’s five working groups commenced negotiations on various aspects of the envisaged constitutional dispensation and process in March 1992. They made substantial progress and reported back to CODESA 2 on 15 May. However, on 17 June Codesa 2 collapsed because of its failure to reach agreement on the percentages by which the final constitution would have to be adopted – and because of escalating violence.
On 26 September 1992, after three months of nationwide demonstrations, the Government and the ANC opened the way to the resumption of negotiations with the adoption of the Record of Understanding.
The final phase of the negotiations began in March 1993 with a 26-party planning meeting which established the Multiparty Negotiating Process. The new framework included an Negotiating Forum, a Negotiating Council and eight technical committees. The process reached agreement on an interim constitution and the transitional mechanisms required for free and fair elections, including a Transitional Executive Council; and Independent Electoral Commission and an Independent Media Commission. The Interim Constitution was approved by the Negotiating Forum on 18 November and was adopted by Parliament on 22 December 1993. The first national democratic elections took place on 27 April 1994.
OFFICIAL AND UNOFFICIAL EXPLORATORY TALKS
Unofficial exploratory meetings between South Africans, the SA Government and the ANC played an important role in creating mutual confidence and in preparing the way for formal negotiations.
Talks between Nelson Mandela and the SAG
From 1985 onward meetings were held between the Minister of Justice, Mr Kobie Coetsee, senior officials and Mr Nelson Mandela. Mr Mandela had decided, independently of the ANC headquarters in Lusaka, to begin to explore possibilities for a negotiated solution. In May 1988 the SAG set up an informal committee to handle the discussions which dealt broadly with the modalities of negotiations; the constitutional nature of a new South Africa and minority rights. The process led to meetings between Mr Mandela and President P W Botha and President De Klerk in 1989. On 12 September the National Intelligence Service met with the ANC under the leadership of Thabo Mbeki and Jacob Zuma in Swtizerland.
Unofficial Meetings between South Africans and the ANC
The first contacts between the ANC in exile and South Africans occurred in September, 1985 when a group of academics and businessmen led by Anglo-American Chairman Gavin Relly met with an ANC delegation in Zambia. Later in 1985 the ANC met informally with members of the opposition Progressive federal Party in Lusaka. A widely publicised meeting took place in Dakar in September 1987 between a large group of academics and businessmen and an ANC delegation led by Thabo Mbeki. The meetings were unsanctioned, exploratory and did not have the approval of the SAG.
Meetings between Afrikaner leaders and the ANC
In June 1986, Dr Pieter de Lange, the head of the influential Afrikaner Broederbond (Afrikaner League of Brothers) attended a meeting in New York with senior ANC members, including Thabo Mbeki, under the aegis of the Ford Foundation. The meeting was followed between November 1987 and May 1990 by twelve meetings at Mells Park House in England between the ANC some twenty members of the Afrikaner elite, including members of the ‘Broederbond’. The meetings took place with the secret knowledge and approval of President P W Botha and the National Intelligence Service.
THE LAUNCHING OF THE NEGOTIATION PROCESS
The sophisticated management of domestic and international communication was crucially important for the success of the process:
On 2 February 1990, President F W de Klerk surpassed all expectations by announcing the government’s intention to commence negotiations in a manner that met all the ANC’s substantive demands. In so-doing he seized the initiative and the moral high ground and began the difficult process of changing the extremely negative national and international perceptions of his government and party.
PREPARATORY NEGOTIATIONS
The first requirements were to enable all the parties to participate freely in the negotiations and to suspend armed operations.
The Groote Schuur Meeting. The first formal negotiations between the SAG and the ANC took place at Groote Schuur, President De Klerk’s residence in Cape Town, between 2 and 4 May 1990. The meeting dealt primarily with
• arrangements to release ANC prisoners and to grant indemnity to ANC members to enable them to return to South Africa. The meeting established a Working Group on Political Offences to consider and report back on these matters;
• amendments to security legislation, including the then existing state of emergency;
• channels of communication between the ANC and the SAG to curb violence and intimidation.
The Pretoria Meeting. A second meeting between the ANC and the SAG on 6 August 1990 approved and agreed to implement the proposals of the Working Group on Political Offences. The ANC agreed to suspend its armed struggle and to the establishment of a Working Group on the Suspension of the Armed Struggle to report on all the implications of this decision. In return, the SAG said it would consider lifting the State of Emergency and repealing unacceptable provisions of the Internal Security Act. Both sides expressed their concern over escalating violence and agreed to improve communication mechanisms to help address violence.
The D F Malan Airport Meeting. The Working Group on the Suspension of the Armed Struggle did not report back until 12 February 1991. The ANC agreed to cease armed attacks; the infiltration of men and material; the establishment of underground military structures; and threats of violence. In return the SAG agreed that the ANC’s armed wing was a legal organization with established arms caches in the country and that it was entitled to train men and retain its existing underground structures. The security forces would suspend all unauthorized activities against them. The meeting established a liaison committee to oversee the implementation of the agreement.
THE PROBLEM OF VIOLENCE
On-going violence was one of the main obstacles to negotiations. The National Peace Accord played a key role in addressing the problem and in creating nationwide peace structures:
Progress toward the commencement of constitutional negotiations was seriously impeded by continuing violence – particularly in KwaZulu-Natal; by accusations of security force complicity in violence on the one hand and the discovery of an underground military mobilisation offensive by the ANC, known as operation VULA.
The National Peace Accord. These developments led to the adoption of the National Peace Accord on 14 September 1991. The Accord was initiated by Church, business and community organizations. It made provision for codes of conduct for political parties, the security forces and the police in terms of which all parties agreed to pursue their interests solely by peaceful and constitutional means. The National Peace Accord established
• a National Peace Secretariat with members from the SAG and political parties to establish local and regional peace committees throughout the country that would promote peace and community reconstruction and development.
• a National Peace Committee, comprising all the Accord signatories, that would monitor codes of conduct; deal with complaints and transgressions and promote community reconstruction and development; and
• the National Peace Commission, under the chairmanship of Judge Richard Goldstone, that would investigate and report on violence and intimidation.
FORMAL CONSTITUTIONAL NEGOTIATIONS
The adoption of a Delaration of Intent provided common ground for negotiations. A process that included all parties with significant support was essential as was the adoption of decisions by ‘sufficient consensus’.
These developments made it possible, finally, for the parties to convene the first formal constitutional negotiations in December 1991 at CODESA I. It was decided that 1) parties with significant support should be invited to participate 2) the convention would be chaired by Chief Justice Michael Corbett and Judges Ismail Mahommed and Piet Schabort; and 3) that decisions should be taken by ‘sufficient consensus’ which in practice required agreement by the National Party government and the ANC – sometimes later including the Inkatha Freedom Party and sometimes not.
CODESA 1. The participating parties adopted a ‘Declaration of Intent’ which set out the commitment of all participants to the establishment of a constitutional democracy with full human and political rights and recognition of cultural and language diversity.
CODESA 1 established a Management Committee and five working groups to negotiate the manner in which the goals in the Declaration of Intent could be achieved. The working groups began their deliberations in March, 1992 with the following responsibilities and results:
Working Group 1 was charged with the creation of a climate for free political participation and the neutrality of state media. It was also asked to make recommendations on the role of the international community. It made recommendations on the following issues:
• the continuation of bilateral discussions between the ANC and SAG regarding the release of political prisoners and the return of exiles;
• the circumstances in which states of emergency could be declared and security legislation could be used to counteract violence;
• the need to repeal or amend any discriminatory legislation that might impede free political activity – and the establishment of a task group to make recommendations in this regard;
• the peaceful resolution of all disputes between political parties;
• the right to freedom of expression, opinion, association and movement;
• the establishment of an independent organization to regulate the telecommunications industry – including the state controlled media;
• support for the work of the National Peace Accord;
• the placing of the security forces under the control of neutral transitional authorities; and
• the scrapping of provisions that prevented political organizations from receiving foreign funds.
Working Group 2 dealt with constitutional issues, including the question of federalism, transitional arrangements, and the manner in which the new constitution would be adopted. It agreed to the following:
• A transitional parliament would be elected democratically which would legislate during the interim period and also sit as a constitutional assembly that would write the final constitution;
• During the interim period there would be a multiparty executive and separation of powers between the executive, legislature and judiciary.
However, Working Group 2 could not reach agreement on the percentages that would be required for the adoption of the final constitution. This failure led to the collapse of CODESA 1.
Working Group 3 dealt with transitional arrangements. It made recommendations on
• the establishment of a multiparty Transitional Executive Council that would work alongside the existing government and ensure that there was a climate conducive to holding free and fair elections. The TEC would have six sub-councils that would deal with the independent black homelands; regional and local government; finance; law and order; defence; and foreign relations, and
• The establishment of an independent media commission to carry out the recommendations of working group 1.
• The establishment of an Independent Electoral Commission to hold free and fair elections. The IEC would be independent of the TEC.
Working Group 4 was charged with the reincorporation of the independent black homelands. In this regard in recommended
• The transfer of the assets and liabilities of the independent homelands to the new central government;
• The retention by homeland civil servants of their existing benefits, salaries and conditions of service; and
• The establishment of a technical committee to advise on the relationship between the homelands and the central government during the transition.
Working Group 5 was intended to plan the speedy implementation of recommendations made by the other working groups. However, it was not able to carry out this function because it received the recommendations of the other working groups so late that it was unable to do any meaningful planning.
CODESA 2
CODESA reconvened on 15 may 1992 as CODESA 2. It considered the reports of the working groups but failed to resolve outstanding differences from working group 2 on the nature of the interim government – and especially on the percentages that would be required to adopt the final constitution. The CODESA process broke down finally on 17 June 1992 following the withdrawal of the ANC and its allies from the process in reaction to the killing of 48 people at Boipatong in the southern Transvaal.
RECORD OF UNDERSTANDING
It was essential when problems arose to maintain communication by way of informal back channels.
After three months of nationwide protests and demonstrations – that culminated in the killing of 28 people at Bisho – the ANC and the SAG agreed to resume bilateral talks. During this period, the SAG/ANC maintained informal contact by way a back channel consisting of two senior officials closely linked to the top leadership. The SAG/ANC met on 26 September 1992 and adopted a Record of Understanding that made provision for:
• an interim constitution that would be agreed to by the negotiating parties;
• a democratically elected parliament that would also write a final constitution within the framework of agreed constitutional principles and
• a transitional government of national unity;
• the release of all ANC prisoners who had committed crimes with a political motive; and
• moves to secure IFP hostels and to ban the carrying of traditional weapons.
The Record of Understanding opened the way to the resumption of constitutional negotiations but also incensed the IFP which withdrew from the process.
THE MULTIPARTY NEGOTIATING NEGOTIATING PROCESS
Technical committees staffed by impartial experts played a key role in drafting agreements.
Resumption of Negotiations
The formal negotiating process was resumed in March, 1993, extensive consultations with all the parties involved. On 5 – 6 March a planning committee was convened that included representatives from 26 parties with significant support – including some that had not participated in CODESA 1 and 2. an additional 11 organisations were given observer status. The participants agreed to
• recommence formal negotiations no later than 5 April 1993;
• continue to take all future decisions on the basis of ‘sufficient consensus’(i.e. sufficient agreement to ensure the continuation of the process0;
• investigate ways of using agreements already reached at Codesa 2 as the basis for further negoatiations;
• establish a 26-member Facilitating Committee and a 10-member sub-committee to take the process further and to propose a framework for renewed negotiations.
The Multiparty Negotiating Process
The new negotiating process included
• a Negotiating Forum, with four delegates and two advisers from each party, which would supervise the work of a Negotiating Council; approve or amend the Council’s proposals, and set a date for the first national general election;
• a Negotiating Council, with two delegates and two advisers from each party, to conduct the negotiations;
• a ten-member non-partisan Planning Committee to carry out procedural and substantive instructions of the Negotiating Council;
• a Commission for the Demarcation of new States/Provinces/Regions;
• the following eight technical committees, comprising non-partisan experts to produce documentation for the Negotiating Council on the following topics:
o an Independent Media Commission – to ensure the impartiality of state controlled media during the transition;
o an independent Electoral Commission to administer the first national elections;
o the repeal of any laws that might impede free and fair elections;
o ways of counteracting violence;
o additional support for the National Peace Accord;
o agreement on the constitutional principles with which the final constitution would have to comply and other constitutional questions;
o an interim charter of human rights; and
o the establishment of a Transitional Executive Council – which would be co-responsible with the existing government for a range of governmental actions during the transition.
By the end of June 1993 the Negotiating Council had reached sufficient consensus to instruct the technical committee on constitutional matters to draft an interim constitution that would make provision inter alia for
• the election on 27 April 1994 of a transitional parliament that would also draft a final constitution within the framework of 34 constitutional principles (a number of parties, including the IFP, rejected this proposal and withdrew from the process);
• a transitional multiparty government of national unity;
• quasi-federal regional governments;
• a transitional Bill of Rights; and
• a Constitutional Court.
The technical committee submitted its first draft of the transitional constitution to the Negotiating Council on 23 July 1993. The fourth draft was approved by the Negotiating Council on 18 November 1993 and was enacted by Parliament on 22 December 1993.
DECLARATION OF INTENT
We, the duly authorised representatives of political parties, political organizations, administrations and the South African Government, coming together at this first meeting of the Convention for a Democratic South Africa, mindful of the awesome responsibility that rests on us at this moment in the history of our country,
declare our solemn commitment:
to bring about an undivided South Africa with one nation sharing a common citizenship, patriotism and loyalty, pursuing amidst our diversity, freedom, equality and security for all irrespective of race, colour, sex or creed; a country free from apartheid or any other form of discrimination or domination;
to work to heal the divisions of the past, to secure the advancement of all, and to establish a free and open society based on democratic values where the dignity, worth and rights of every South African are protected by law;
to strive to improve the quality of life of our people through policies that will promote economic growth and human development and ensure equal opportunities and social justice for all South Africans;
to create a climate conducive to peaceful constitutional change by eliminating violence, intimidation and destabilization and by promoting free political participation, discussion and debate;
that there will be a multi-party
to set in motion the process of drawing up and establishing a constitution that will ensure, inter alia:
a. that South Africa will be a united, democratic, non-racial and non-sexist state in which sovereign authority is exercised over the whole of its territory;
b. that the Constitution will be the supreme law and that it will be guarded over by an independent, non-racial and impartial judiciary;
c. there will be a multi-party democracy with the right to form and join political parties and with regular elections on the basis of universal adult suffrage on a common voters roll; in general the basic electoral system shall be that of proportional representation;
d. that there shall be a separation of powers between the legislature, executive and judiciary with appropriate checks and balances;
e. that the diversity of languages, cultures and religions of the people of South Africa shall be acknowledged;
f. that all shall enjoy universally accepted human rights, freedoms and civil liberties including freedom of religion, speech and assembly protected by an entrenched and justiciable Bill of Rights and a legal system that guarantees equality of all before the law.
We agree:
1. that the present and future participants shall be entitled to put forward freely to the Convention any proposal consistent with democracy.
2. that CODESA will establish a mechanism whose task it will be, in co-operation with administrations and the South African Government, to draft the texts of all legislation required to give effect to the agreements reached in CODESA.
We, the representatives of political parties, political organizations and administrations, further solemnly commit ourselves to be bound by the agreements of CODESA and in good faith to take all such steps as are within our power and authority to realise their implementation.
Signed by
Ciskei Government
Democratic Party
Dikwankwetla Party
Inkatha Freedom Party
African National Congress
Bophuthatswana Government
Inyandza National Movement
Intando Yesizwe Party
Labour Party of South Africa
Natal/Tvl Indian Congress
National Party
National People’s Party
Solidarity
South African Communist Party
Transkei Government
United People’s Front
Venda Government
Ximoko Progressive Party
We, the South African Government, declare ourselves to be bound by agreements we reach together with other participants in CODESA in accordance with the standing rules and hereby commit ourselves to the Implementation thereof within our capacity, powers and authority.
Signed by
South African Government’
Nkosi sikelel’ iAfrika.
Ons vir jou Suid Afrika.
Morena boloka sechaba sa heso.
May the Lord bless our country.
Mudzimu Fhatutshedza Afrika.
Hosi katekisa Afrika.
Flowing from this commitment, the following was agreed upon:
1. The establishment of a working group to make recommendations on a definition of political offences in the South African situation; to discuss, in this regard, time scales; and to advise on norms and mechanisms for dealing with the release of political prisoners and the granting of immunity in respect of political offences to those inside and outside South Africa. All persons who may be affected will be considered. The working group will bear in mind experiences in Namibia and elsewhere. The working group will aim to complete its work before 21st May 1990. It is understood that the South African government, in its discretion, may consider other political parties and movement and other relevant bodies. The proceedings of the working group will be confidential. In the meantime the following offences will receive attention immediately:
a. The leaving of the country without a valid travel document.
b. Any offences related merely to organisations which were previously prohibited.
2. In addition to the arrangements mentioned in paragraph 1, temporary immunity from prosecution of political offences committed before today, will be considered on an urgent basis for members of the National Executive Committee and selected other members of the ANC from outside the country, to enable them to return and help with the establishment and management of political activities, to assist in bringing violence to an end and to take part in peaceful political negotiations.
3. The government undertakes to review existing security legislation to bring it into line with the new dynamic situation developing in South Africa in order to ensure normal and free political activities.
4. The government reiterates its commitment to work towards the lifting of the state of emergency. In this context, the ANC will exert itself to fulfill the objectives contained in the preamble.
5. Efficient channels of communication between the government and the ANC will be established in order to curb violence and intimidation from whatever quarter effectively.
The government and the ANC agree that the objectives contained in this minute should be achieved as early as possible.
Cape Town,
4th May 1990
Document 18 – The Pretoria Minute 6 August 1990
The government and the ANC have held discussions at the Presidency, Pretoria, today 6 August 1990.
1. The Government and the ANC have again committed themselves to the Groote Schuur Minute.
2. The final report of the Working Group on political offences dated 21 May 1990, as amended, was accepted by both parties. The guidelines to be formulated in terms of the Report will be applied in dealing with members of all organisations, groupings or institutions, governmental or otherwise, who committed offences on the assumption that a particular cause was being served or opposed. The meeting has instructed the Working Group to draw up a plan for the release of ANC-related prisoners and the granting of indemnity to people in a phased manner and to report before the end of August. The following target dates have in the meantime been agreed upon:
• The body or bodies referred to in paragraph 8.2 of the Report of the Working Group will be constituted by 31 August 1990.
• The further release of prisoners which can be dealt with administratively will start on 1 September 1990.
• Indemnity which can be dealt with in categories of persons and not on an individual basis will be granted as from 1 October 1990. This process will be completed not later than the end of 1990.
• In all cases where the body or bodies to be constituted according to paragraph 8.2 of the Report of the Working Group will have to consider cases on an individual basis, the process will be expedited as much as possible. It is hoped that this process will be completed within six months, but the latest date envisaged for the completion of the total task in terms of the Report of the Working Group is not later than 30 April 1991.
This programme will be implemented on the basis of the Report of the Working Group.
3 In the interest of moving as speedily as possible towards a negotiated peaceful political settlement and in the context of the agreements reached, the ANC announced that it was now suspending all armed actions with immediate effect. As a result of this, no further armed actions and related activities by the ANC and its military wing uMkhonto we Sizwe will take place. It was agreed that a working group would be established to resolve all outstanding questions arising out of this decision to report by 15 September 1990. Both sides once more committed themselves to do everything in their power to bring about a peaceful solution as quickly as possible.
4 Both delegations expressed serious concern about the general level of violence, intimidation and unrest in the country, especially in Natal. They agreed that in the context of the common search for peace and stability, it was vital that understanding should grow among all sections of the South African population that problems can and should be solved through negotiations. Both parties committed themselves to undertake steps and measures to promote and expedite the normalisation of the situation in line with the spirit of mutual trust obtaining among the leaders involved.
5 With due cognisance of the interest, role arid involvement of other parties the delegations consider it necessary that whatever additional mechanisms of communication are needed should be developed at local, regional and national levels. This should enable public grievances to be addressed peacefully and in good time, avoiding conflict.
6 The Government has undertaken to consider the lifting of the State of Emergency in Natal as early as possible in the light of positive consequences that should result from this accord.
7 In view of the new circumstances now emerging there will be an ongoing review of security legislation. The Government will give immediate consideration to repealing all provisions of the Internal Security Act that –
(a) refer to communism or the furthering thereof;
(b) provide for a consolidated list;
(c) provide for a prohibition on the publication of statements or writings of certain persons; and
(d) provide for an amount to be deposited before a newspaper may be registered.
The Government will continue reviewing security legislation and its application in order to ensure free political activity and with the view to introducing amended legislation at the next session of Parliament, The Minister of Justice will issue a statement in this regard, inter alia calling for comments and proposals.
8. We are convinced that what we have agreed upon today can become a milestone on the road to true peace and prosperity for our country. In this we do not pretend to be the only parties involved in the process of shaping the new South Africa. We know there are other parties committed to peaceful progress. All of us can henceforth walk that road in consultation and cooperation with each other. We call upon all those who have not yet committed themselves to peaceful negotiations to do so now.
9. Against this background, the way is now open to proceed towards negotiations on a new constitution. Exploratory talks in this regard will be held before the next meeting which will be held soon.
PRETORIA – 6 August 1990
Report – Working group established under paragraph 1 of the Groote Schuur Minute
1. On 2, 3 and 4 May 1990, at Groote Schuur in Cape Town, a delegation of the African National Congress met the State President accompanied by Ministers and officials. At the conclusion of the meeting a document, called the Groote Schuur Minute, was adopted. A copy thereof is attached. Paragraph 1 provided for the establishment of a working group. The ANC nominated as its representatives on the working group, Messrs Zuma, Maduna, Nhlanhla, Pahad, Phosa and Ndlovu (its members on the Steering Committee). The Government nominated as its representatives Minister Coetsee, Deputy Minister Meyer and Messrs Van der Merwe, Swanepoel, Louw and Viall, Major General Knipe and Brigadier Kok.
2. The Working Group was charged with -
• Making recommendations on a definition of political offences in the South African situation;
• Discussing, in this regard, time scales; and
• Advising on norms and mechanisms for dealing with the release of political prisoners and the granting of immunity of political offences to those inside and outside South Africa.
3. It is recognised that in terms of the Groote Schuur Minute, the category of persons involved only in offences set out hereunder have already been catered for, for immediate attention:
3.1 The leaving of the country without a valid travel document;
3.2 Any offences related merely to organisations which were previously prohibited (including membership of uMkhonto we Sizwe).
4. Persons in the above category are entitled to be dealt with in terms of the provisions set out in paragraphs 6.2 and 6.3 hereof, as the case may be.
5. The Working Group met on a number of occasions and reports as follows:
DEFINING POLITICAL OFFENCES IN THE SOUTH AFRICAN SITUATION:
6.1 The following classes of persons, whether inside or outside South Africa, must be taken into account with regard to pardon or indemnity for political offences:
(a) Persons already sentenced, including persons serving a sentence, persons subject to any suspended sentence, persons awaiting execution of a sentence or where the case is on appeal or review.
(b) Persons who may be liable to prosecution, or who are awaiting or undergoing trial.
(c) Persons in detention.
6.2 The power to pardon is vested in the State President by virtue of section 6 of the Republic of South Africa Constitution Act, 1983 (Act 110 of 1983), and section 69 of the Prisons Act, 1959 (Act 8 of 1959), and will apply to persons already sentenced, i.e. class (a) above.
6.3 Special power to grant indemnity is required in regard to persons referred to in class (b) above. The relevant power is contained in section 2 of the Indemnity Act, 1990. Section 6 of the Criminal Procedure Act, 1977 provides for the stopping of a prosecution and may therefore be applied.
6.4 The recommendations contained in this document relate only to political offences and in no way imply any limitation upon the general exercise of the powers mentioned in paragraphs 6.2 and 6.3.
6.5 In preparing for the making of ‘recommendations on a definition of political offences in the South African situation’, the following principles and factors were noted (the principles and factors are largely those applied by Prof. Norgaard in the Namibian situation after study of the jurisprudence and the representations of the parties concerned and do not purport to be exhaustive):
6.5.1 There is no generally accepted definition of ‘political offence’ or political prisoner’ in international law. What is generally accepted, however, is that principles developed in the field of extradition law are relevant in distinguishing between ‘political offence’ and ‘common crimes’.
6.5.2 The law and practice of states show that there is now a considerable degree of consensus both as to the types of offence which may in principle be classified as political as well as to the sort of factors which should be taken into account in deciding whether an offence is ‘political’ or not. In particular, the following are aspects of the law and practice of extradition which appear to provide valuable guidance:
(a) Whether or not an offence is political depends on the facts and circumstances of each individual case. The question is thus approached on a case-by-case basis.
(b) Certain offences are recognised as ‘purely’ political, e.g. treason directed solely against the State and not involving a common or ‘ordinary’ crime such as murder or assault or the dissemination of subversive literature.
(c) In certain circumstances a ‘common’ crime, even a serious one such as murder, may be regarded as a political offence. Here the following are the principal factors which are commonly taken into account by national courts:
(i) The motive of the offender – i.e. was it a political motive (e.g. to change the established order) or a personal motive (e.g. to settle a private grudge).
(ii) The context in which the offence was committed, especially whether the offence was committed in the course of or as part of a political uprising or disturbance.
(iii) The nature of the political objective (e.g. whether to force a change in policy or to overthrow the Government).
(iv) The legal and factual nature of the offence, including its gravity (e.g. rape could never be regarded as a political offence).
(v) The object of the offence (e.g. whether it was committed against Government property or personnel or directed primarily against private property or individuals).
(vi) The relationship between the offence and the political objective being pursued (e.g. the directness or proximity of the relationship, or the proportionality between the offence and the objective pursued).
(vii) The question whether the act was committed in the execution of an order or with the approval of the organisation, institution or body concerned.
6.6.1 The Working Group endorses the principles and factors set out in paragraph 6.5.2 and accept that these will form the basis of guidelines to meet the South African situation when considering the grant of pardon or indemnity in respect of political offences.
6.6.2 As stated in the Groote Schuur Minute, it is understood that the Government may in its discretion consult other political parties and movements, and other relevant bodies with regard to the grant of pardon or indemnity in respect of offences relating to them. For this purpose it shall be free to formulate its own guidelines which it will apply in dealing with members of such organisations, grouping or institutions, governmental or otherwise, who committed offences on the assumption that a particular cause was being served or opposed.
Time scales
7.1 Having defined political offences, the norms and the guidelines a cut-off date will have to be fixed. Pardon and indemnity will only be considered in respect of political offences committed on or before that date.
7.2 Bearing in mind the preamble to the Groote Schuur Minute, the Working Group accepts that the process should proceed as expeditiously as possible. It is understood that diverse periods for pardon, indemnity and release will apply to diverse persons, categories of persons and categories of offences. A mechanism to provide advice to Government in this regard is necessary.
7.3 It is understood that the Government may, without waiting for the implementation of the process contemplated in this document, proceed to exercise the powers referred to in paragraph 6.2, in terms of existing policy. This may result in substantial results in the very near future in regard to persons referred to in class (a) of paragraph 6.1.
A Mechanism
8.1 The granting of pardon or indemnity in respect of a specific offence or a category of offence is an executive governmental function. The purpose of devising a mechanism is to provide the executive with wise advice and to demonstrate that the interests of all parties are being taken into account in as objective a manner as possible.
8.2 It is suggested for this purpose that a body or bodies be constituted, consisting of a convenor with ad hoc appointments from concerned groups when dealing with particular offences (or categories of offences).
8.3 It is recommended that this Working Group be kept active in respect of ANC interests.
8. THE DF MALAN DOCUMENT
The Working Group established under paragraph 3 of the Pretoria Minute produced the DF Malan Document after more than six months of extremely lengthy and difficult discussions. The main features of the DF Malan Document are the following:
(i) An undertaking by the ANC to stop:
o Attacks by means of armaments, firearms, explosives or incendiary devices
o Infiltration of men and material
o Creating military as opposed to political underground structures
o Statements inciting violence
o Threats of armed action
o Military training inside the country
(ii) The government agreed and accepted the following:
o That MK is not only a legal organisation but also that membership of MK is neither a crime nor in violation of the Pretoria minute
o The historical fact that MK placed arms and caches within our country
o That MK may continue to recruit and train its cadres
o That mass action is a legitimate form of protest
o That our non-automatic firearms will be legalised for self- defence
o That the ANC is entitled to continue to maintain the already existing military underground structures
o That the security forces will take cognisance of the suspension of armed action and related activities and that all unauthorised activities by them be addressed.
(iii) A Liaison Committee to deal with the implementation of the DF Malan Document was created in the same document.
9. THE LIAISON COMMITTEE IN TERMS OF THE DF MALAN DOCUMENT
This Liaison Committee met on several occasions but has thus far failed to reach a substantial agreement. The regime’s representative sought to turn the suspension of armed action into a termination of the armed struggle and this was rejected by the ANC representatives. There is not a stalemate in the discussions in the Liaison Committee.
DF MALAN ACCORD
REPORT OF THE WORKING GROUP UNDER PARAGRAPH THREE OF THE PRETORIA MINUTE
1. The Working Group was established under paragraph 3 of the Pretoria Minute, which reads as follows:
“In the interest of moving as speedily as possible towards a negotiated peaceful political settlement and in the context of the agreements reached, the ANC announced that it was now suspending all armed actions with immediate effect. As a result of this, nor further armed actions and related activities by the ANC and its military wing, Umkhonto weSizwe will take place. It was agreed that a Working Group will be established to resolve all outstanding questions arising out of this decision to report by 15 September 1990. Both sides once more committed themselves to do everything in their power to bring about a peaceful solution as quickly as possible.”
2. Having decided that it would not have been possible to submit a final report by the 15th September 1990, an interim report was brought out on 13 September 1990.
3. Since then a number of meetings have taken place. This report was finalised at a meeting on the 12th of February 1991.
4. With reference to the work “suspending” as used in paragraph 3 of the Pretoria minute, the Working Group what was said in paragraph 4 of its Interim Report, namely that suspension occurred as a step in the process of finding peaceful solutions, with the presumption that the process would lead to the situation where there would be no return to armed action.
5. (a) Under the terms of suspension of “armed action” and “related activities” by the ANC, with specific reference also to Umkhonto weSizwe and its organised military groups and armed cadres, it was agreed that the following will not take place:
i. Attacks by means of armaments, firearms, explosive or incendiary devices.
ii. Infiltration of men and material
iii. Creation of underground structures
iv. Statements inciting violence
v. Threats of armed action
vi. Training inside South Africa
(b) The Working Group:
i. agreed that the democratic process implies and obliges all political parties and movements to participate in this process peacefully and without resort to the use of force;
ii. therefore accepted the principle that in a democratic society no political party or movement should have a private army;
iii. noted that the ANC had, in good faith and as a contribution to the process of arriving at a peaceful settlement announced the suspension all armed actions and related activities, with the presumption that the process would lead to the situation where there would be no return to armed action;
iv. noted that by virtue of the fact that Umkhonto weSizwe is no longer an unlawful organisation, membership thereof is not in violation of any of the provisions of paragraph 3 of the Pretoria Minute and the letter and spirit of the Pretoria Minute as a whole;
v. noted the historical fact that the ANC and Umkhonto weSizwe had placed arms and cadres within the country;
vi. agreed that in the context of paragraph 5(b) (ii) , (iii) and (iv) above, it was vital that control over such cadres and arms be exercised to ensure that no armed actions or related activities occur;
vii. further agreed that in the context of paragraph 59b(ii) , (iii) and (iv) above, a phased process be initiated in order to enable these cadres of the ANC to resume their normal lives and also facilitate and legalise control over the arms and the process to ensure such legality will immediately be taken further by the Working Group;
viii. agreed that where applicable, individual weapons shall be licenced in terms of existing legislation;
ix. further agreed that the security forces take cognisance of the suspension of armed action and related activities and that the parties hereto will remain in close liaison with one another according to the procedure prescribed in 6 9a) of this document with a view to ensuring prompt and efficient reporting, investigation and redressing, where applicable, of all allegations of unlawful activities or activities contrary to the spirit of this agreement, by the security forces.
(c) The Working Group:
i. agreed that the population at large has a right to express its views through peaceful demonstrations;
ii. further agreed that it is urgent and imperative that violence and intimidation from whatever quarter accompanying mass action should be eliminated;
iii. further agreed that peaceful political activities and stability must be promoted;
iv. further agreed that it this end joint efforts should be made to implement the intentions contained in paragraphs 5 of the Groote Schuur and the Pretoria Minutes to ensure that grievances and conflict-creating situations are timeously addressed.
6. (a) The Working Group agreed that designated members of the ANC would work with government representatives in a Liaison Committee to implement this agreement, and that the existing nominated SAP and ANC liaison officials appointed in accordance with paragraph 5 of the Groote Schuur Minute shall serve as supporting structure of the Liaison Committee.
(b) It is agreed that this agreement will be implemented forthwith and its objectives attained as speedily as possible.
(c) It is further agreed that in view of the above the process of attaining the objectives contained in paragraph 2 of the Pretoria Minute will be realised according to the procedures contained in that minute.
7. It is understood that nothing in or omitted from the agreement will be construed as invalidating or suspending the provisions of any law applicable in South Africa.
8. It is recommended that this Working Group be continued to supervise the implementation of this agreement relating to paragraph 3 and the activities of the Liaison Committee and to give attention to further matters that may arise from the implementation of this agreement, such as proposed defence units.
DECLARATION OF INTENT
We, the duly authorised representatives of political parties, political organizations, administrations and the South African Government, coming together at this first meeting of the Convention for a Democratic South Africa, mindful of the awesome responsibility that rests on us at this moment in the history of our country,
declare our solemn commitment:
to bring about an undivided South Africa with one nation sharing a common citizenship, patriotism and loyalty, pursuing amidst our diversity, freedom, equality and security for all irrespective of race, colour, sex or creed; a country free from apartheid or any other form of discrimination or domination;
to work to heal the divisions of the past, to secure the advancement of all, and to establish a free and open society based on democratic values where the dignity, worth and rights of every South African are protected by law;
to strive to improve the quality of life of our people through policies that will promote economic growth and human development and ensure equal opportunities and social justice for all South Africans;
to create a climate conducive to peaceful constitutional change by eliminating violence, intimidation and destabilization and by promoting free political participation, discussion and debate;
to set in motion the process of drawing up and establishing a constitution that will ensure, inter alia:
a. that South Africa will be a united, democratic, non-racial and non-sexist state in which sovereign authority is exercised over the whole of its territory;
b. that the Constitution will be the supreme law and that it will be guarded over by an independent, non-racial and impartial judiciary;
c. that there will be a multi-party democracy with the right to form and join political parties and with regular elections on the basis of universal adult suffrage on a common voters roll; in general the basic electoral system shall be that of proportional representation;
d. that there shall be a separation of powers between the legislature, executive and judiciary with appropriate checks and balances;
e. that the diversity of languages, cultures and religions of the people of South Africa shall be acknowledged;
f. that all shall enjoy universally accepted human rights, freedoms and civil liberties including freedom of religion, speech and assembly protected by an entrenched and justiciable Bill of Rights and a legal system that guarantees equality of all before the law.
We agree:
1. that the present and future participants shall be entitled to put forward freely to the Convention any proposal consistent with democracy.
2. that CODESA will establish a mechanism whose task it will be, in co-operation with administrations and the South African Government, to draft the texts of all legislation required to give effect to the agreements reached in CODESA.
We, the representatives of political parties, political organizations and administrations, further solemnly commit ourselves to be bound by the agreements of CODESA and in good faith to take all such steps as are within our power and authority to realise their implementation.
Signed by
Ciskei Government
Democratic Party
Dikwankwetla Party
Inkatha Freedom Party
African National Congress
Bophuthatswana Government
Inyandza National Movement
Intando Yesizwe Party
Labour Party of South Africa
Natal/Tvl Indian Congress
National Party
National People’s Party
Solidarity
South African Communist Party
Transkei Government
United People’s Front
Venda Government
Ximoko Progressive Party
We, the South African Government, declare ourselves to be bound by agreements we reach together with other participants in CODESA in accordance with the standing rules and hereby commit ourselves to the Implementation thereof within our capacity, powers and authority.
Signed by
South African Government’
Nkosi sikelel’ iAfrika.
Ons vir jou Suid Afrika.
Morena boloka sechaba sa heso.
May the Lord bless our country.
Mudzimu Fhatutshedza Afrika.
Hosi katekisa Afrika.
RECORD OF UNDERSTANDING
1. Since 21 August 1992 a series of meetings was held between Mr Roelf Meyer, Minister of Constitutional Development and Mr Cyril Ramaphosa, Secretary General of the African National Congress.
These meetings entailed discussions with a view to remove obstacles towards the resumption of negotiations and focused on the identification of steps to be taken to address issues raised in earlier memoranda. The discussions took note of various opposing viewpoints on the relevant issues and obstacles. It was decided that these issues should not be dealt with exhaustively in the understanding. This document reflects the understanding reached at the conclusion of the discussions regarding these obstacles and issues.
2. The understandings on issues and obstacles included the following, although it was observed that there are still other important matters that will receive attention during the process of negotiation:
(a) The Government and the ANC agreed that there is a need for a democratic constitution assembly/constitution-making body and that for such a body to be democratic it must:
• be democratically elected;
• draft and adopt the new constitution, implying that it should sit as a single chamber;
• be bound only by agreed constitutional principles;
• have a fixed time frame;
• have adequate deadlock breaking mechanisms;
• function democratically i.e. arrive at its decisions democratically with certain agreed to majorities; and
• be elected within an agreed predetermined time period.
Within the framework of these principles, detail would have to be worked out in the negotiation process.
(b) The Government and the ANC agreed that during the interim/transitional period there shall be constitutional continuity and so constitutional hiatus. In consideration of this principle, it was further agreed that:
• the constitution-making body/constituent assembly shall also act as the interim / transitional Parliament;
• there shall be an interim/transitional government of national unity.
• the constitution-making body/constituent assembly cum interim/transitional Parliament and the interim/transitional government of national unity shall function within a constitutional framework/transitional constitution which shall provide for national and regional government during the period of transition and shall incorporate guaranteed justiciable fundamental rights and freedoms. The interim/transitional Parliament may function as a one-or two-chambered body.
(c) The two parties are agreed that all prisoners whose imprisonment is related to political conflict of the past and whose release can make a contribution to reconciliation should be released.
The Government and the ANC agreed that the release of prisoners, namely, those who according to the ANC fall within the guidelines defining political offences, but according to the Government do not, and who have committed offences with a political motive on or before 8 October 1990 shall be carried out in stages (as reflected in a separate document: IMPLEMENTATION PROGRAMME: RELEASE OF PRISONERS) and be completed before 15 November 1992. To this end the parties have commenced a process of identification. It is the Government’s position that all who have committed similar offences but who have not been charged and sentenced should be dealt with on the same basis. On this question no understanding could be reached as yet and it was agreed that the matter will receive further attention.
As the process of identification proceeds, releases shall be effected in the above-mentioned staged manner. Should it be found that the current executive powers of the State do not enable it to give effect to specific releases arising from the above identification the necessary legislation shall be enacted.
(d) The Goldstone Commission has given further attention to hostels and brought out an urgent report on certain matters and developments on this regard. The commission indicated that the problem is one of criminality and that it will have to investigate which localities are affected.
In the meantime some problematic hostels have been identified and the Government has undertaken as a matter of urgency to address and deal with the problem in relation to those hostels that have been associated with violence. Further measures will be taken, including fencing and policing to prevent criminality by hostel dwellers and to protect hostel dwellers against external aggression. A separate document (Implementation Programme: Hostels) records the identification of such hostels and the security measures to be taken in these instances.
Progress will be reported to the Goldstone Commission and the National Peace Secretariat. United Nations observers may witness the progress in co-operation with the Goldstone Commission and the National Peace Secretariat.
(e) In the present volatile atmosphere of violence the public display and carrying of dangerous weapons provokes further tension and should be prohibited. The Government has informed the ANC that it will issue a proclamation within weeks to prohibit countrywide the carrying and display of dangerous weapons at all public occasions subject to exemptions base on guidelines being prepared by the Goldstone Commission. The granting of exemptions shall be entrusted to one or more retired judges. On this basis, the terms of the proclamation and mechanism for exemption shall be prepared with the assistance of the Goldstone Commission.
(f) The Government acknowledges the right of all parties and organisations to participate in peaceful mass action in accordance with the provisions of the National Peace Accord and the Goldstone Commissions’ recommendations. The ANC for its part reaffirms its commitment to the provisions of the Code of Conduct for Political Parties arrived at under the National Peace Accord and the agreement reached on 16 July 1992 under the auspices of the Goldstone Commission as important instruments to ensure democratic political activity in a climate of free political participation. The two parties also commit themselves to the strengthening of the Peace Accord process, to do everything in their power to calm down tensions and to finding ways and means of promoting reconciliation in South Africa. In view of the progress made in this summit and the progress we are likely to make when negotiations are resumed, the ANC expresses its intention to consult its constituency on a basis of urgency with a view to examine the current programme of mass action.
3. The two parties agreed to hold further meetings in order to address and finalise the following matters which were not completed at the summit:
• Climate of free political activity.
• Repressive/security legislation.
• Covert operations and special forces.
• Violence.
Agreed to at Johannesburg on 26 September 1992:
F W de Klerk
N R Mandela
State President
President: ANC
26 September 1992