This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
21 Aug 1992: Sachs, Albie
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POM. Albie, if I can start in the middle, and this is a question I've put to three or four people all of whom were involved in the Group 2 negotiations and all of whom come up with a slightly different, not entirely different, version of events of what happened in the climactic days up to the deadlock, and that would be for you to address the question of ANC going in looking for 66%, government coming in looking for a threshold of 70% for items in the constitution and the ANC moving to 70% and the government turning the offer down. What happened in terms of who made what proposal to whom? Who compromised and why did the thing collapse and the question that came up in Boston I ask in a general sense because I was personally very surprised at the ANC offer of 75% veto threshold, especially on a Bill of Rights I think where second generation rights were so important.
AS. I don't think the discussions broke down on that. I think the discussions broke down because the government wanted agreement but not too much agreement. They wanted to be able to report considerable progress at CODESA as a lot of issues were unresolved and the reason for that was they wanted to postpone elections that had already been declared a little while before, so I think the setting of that fundamental is that after the referendum, after a lot of tension beforehand and the right wing making all sorts of claims and a spectacular break through for de Klerk, he's got business behind him, it's huge international backing, and he's working very cleverly and closely with Saatchi and Saatchi and a new kind of South African politics emerges that's highly personalised, presidential in style and that's very manipulative in the sense that politics are manipulative all over the world but applied in a way that we haven't quite had in South Africa yet. And the decision that instead of handing over power to an ANC led government and going for all the guarantees and protections that could legitimately be asked and maybe a couple more, the prospect of actually winning and winning meant a number of things.
. In the first place it meant postponing elections for some considerable period of time. The way we had been working beforehand, there was a kind of an assumption that I think had even been mentioned that elections would be held some time this year and now it was quite clear they wanted elections much later and Pik Botha even said all of a sudden out of the blue, "There's too much violence for elections now", and when he was elected leader of the Transvaal also, I'm not sure of the exact co-ordination of these things, but it was made clear that they wanted him because they thought he was a good charismatic candidate who comes across well on TV and they were saying if they hold elections they're going to win. So they needed time for that and time meant time for a number of reasons. One is, and they've been saying this, ANC funds will dry up. Two, it's quite obvious Mandela gets older they're relying on that and three, they want the ANC to shed its lustre and prestige as a liberation organisation and be seen as just another party. So the more time that passes, the more we're engaged in politicking, the more that comes through, the distinction between us and them. In other words it's not an historic one, it's one simply on policy, a kind of a centre right policy as opposed to a centre left policy.
. So I think from that point of view whatever we would have said there would have been a breakdown. And it came as a surprise to us because at CODESA 1 we were very far apart and the last couple of days we got through more progress than we had in weeks beforehand and it was quite clear at CODESA 1 they were very anxious to get the show on the road. It had to be done that year and they agreed to South Africa being a non-racist, non-sexist, united country which was in a way quite extraordinary and their whole approach was one of, a facilitative one. There had been an attempt by Tertius Delport, even at that stage, to pull out and renege completely but in the end after lots of bilaterals and so on it was quite clear that the line was, "Get the show on the road". To me it's quite clear that the line towards the end now was, "Keep the show on the road but mustn't travel too fast." So they actually didn't want an agreement.
. We were arguing in the run up to CODESA 2, Working Group 2 had two basic tasks, mandates. One was to draft the general principles that had to underline the new constitution and the second was to work on a constitution making body. We started off with the first and there was a lot of what we call commonalities in the Declaration of Intent adopted at CODESA 1 that would go into a Bill of Rights that would underline any new constitution. It was actually quite important, it might be three quarters of a new constitutional order, the basic concepts the structures, the checks and balances, multi-party state, constitutionalised Bill of Rights with a Constitutional Court. All that was agreed on very rapidly. Then we went on to the areas that were more contentious. The question of a unitary federal state was one and we really agreed to disagree. We agreed on three-tiered government, that the Bill of Rights would apply, that there would be elected government at all three levels. The Nats, the government, wanted strongly entrenched powers, an exclusive competence and exclusive fund raising capacity and we resisted that and we were for overlapping powers, comparant powers between the centre and the regions with the centre having the last word.
. And I'd mention in passing on our visit to the United Stated recently we discovered that for all the US constitution says that is the reality and the law of Congress will override the law of the state and we don't mind the regions having a lot of autonomy and a lot of influence and control about how laws are effected and applied and implemented in local decision making, but it's got to be in the framework of basic national policy to overcome the legacy of the past.
. In the event we agreed to disagree on that and we had a very broad phraseology that that was agreed on. The second area we discussed, the government pushing very hard for what they called 'a meaningful role for political minorities'. They said, not racial minorities, political minorities. And really what it amounted to was power sharing, constitutionalised power sharing and they wanted to achieve that in a number of ways. It would be power sharing at the legislative level. We had agreed on PR, proportional representation as the basic electoral system, but they wanted a Senate or an Upper House to be a kind of mirror, reverse image of the Lower House. It would be the House of what they called the minority parties and the regions would be represented there. We pointed out if the regions are represented by minority parties then the regions aren't represented. To have regional representation then you must have representation for the majority parties in the regions. In any event we had bitter debates over that. We call it the House of Losers and they kept denying, but they used the phrase so often that the phrase stuck. This is what they wanted for the constitution making body by the way, but they also wanted it in the final constitution that this should be agreed on as a principle so we couldn't agree to that. We were willing to have an Upper House in the final constitution that was based on regions and had a very strong component, like the American Senate and like the German Bundesrat. It's main function could even be to represent the regions and ensure that there's development in all the regions and that regional interests are taken account of and there could be special regional representation, but it had to be democratically created and we couldn't accept their proposals that could have meant that any part that got, say, more than 10% would have equal representation in the Upper House with veto powers over the Lower House. So we disagreed on that.
. They also wanted the government, the Cabinet to be established on the basis of proportional representation. So we said PR for the composition of the legislature and legislative committees and so on, but the government has to be a government responsible to the majority. If that government chose to have a coalition voluntarily, that it was across the board, that would be its rights as a majority and it might well be that for many years to come it would make very good sense in South Africa to have a voluntary coalition. We couldn't agree to compulsory coalition. Tied in with that was the idea of at least a three-headed presidency being chosen by the legislature on a basis of the three most important parties, maybe the five most important parties and you might have heard me saying when I was in the States, the time Perot was one of the candidates, imagine you have elections in the United States and some people mightn't be happy with either Clinton or Perot or Bush but imagine getting all three of them and being stuck with them and then having to rule together in rotation and take decisions by consensus, it's an absolute recipe for paralysis and paralysis of course suits the existing power because it means there's no change and nothing new happens and those who own everything continue to own everything without interference.
. So that was really a very central battle that we were having and we said that, of course, political minorities had rights, they have rights of opposition, basically guaranteed rights. It means freedom of association, the right to campaign, the right to criticise, the right to try and become the majority at the next election. That's their fundamental right, freedom of expression. And then we would also agree to guaranteed rights in the composition of parliamentary bodies and so on but we said that an enforced coalition is like an enforced marriage. It's actually counter-productive. It's less likely to produce real power sharing than voluntary power sharing which works because it's based on perceived interests and need. It's accepted by both parties, it corresponds to their actual power in the country and it functions as long as it serves a need. Whereas if you proscribe it in the constitution, what are elections for? And then the people are forced to come together, they fight each other all the time and you get paralysis. In any event, so we couldn't agree on that.
. Then we decided to postpone the other debate which would have been over aspects of the Bill of Rights, it might have touched on the economy, property rights. We were willing to go quite far on cultural and educational rights in a way that would have been very pleasing, I would have thought, to Afrikaner nationalists who want to preserve the language, the culture, the schooling, the ethos, but in a way that we felt didn't contradict fundamental principles of democracy and also would have recognised the language rights and the parental choice of other groups as well. It would have been a principled thing.
. So we were making progress in that respect but then time was running out so we shifted to the constitution making body. We had a big battle over that and they presented their proposals and a number of their group supported them and we heard almost everybody out and prepared our document which we worked very hard on. We had to deal with the argument of simple majoritarianism. I use the term majoritarianism as though it's the worst ism in the world, worse than Marxism/Leninism and we actually asked the leader of their group, Gerrit Viljoen, if he wouldn't set an example of his opposition to simple majoritarianism by resigning his own seat which he had got on the basis of simple majoritarianism and getting the government to resign because they were elected, I think they didn't even have a 50% support of the electorate and we went through all the laws since 1910, all of which, except one, have been based on simple majoritarianism and wasn't it really a device aimed at the fact that the majority would be black? So anti-majoritarianism really was saying it's really an anti-black thing. They got very indignant when we said that. But we said that in any event we are not arguing for simple majoritarianism. A Bill of Rights counteracts simple majoritarianism with a Constitutional Court. It puts certain measures beyond the scope of parliament, even an absolute majority.
. Secondly, we favoured proportional representation which ensured that there would be representation of all groups. It was against the present proposal, first past the post, the plurality system. It might have been very favourable for the ANC but on principle we felt that was a better system. PR also favours coalition government rather than two-party government. Thirdly, we wanted as broadly based a Constituent Assembly as possible with a large membership so that all groups could be represented and that there should be a two thirds majority, we said, votes, so it wouldn't be by simple majority.
. And finally we were agreeing to certain fundamental principles that would be enshrined in the constitution. We were agreeing in advance to them, even with 100% majority they couldn't be overridden. And we accused them of, by trying to introduce the Senate into the constitution making body of throwing such confusion over the difference between a legislature and a constitution making body that even a first year law student would have failed. They got absolutely livid so in an edition after that of ... publication we just put in a little box saying we understand the government is very upset. The heading to this box was ANC RETRACTS! We understand the government is very upset that we said that their proposals were not worthy of a first year law student. We retract and we're happy to say that they are worthy of a first year law student. And we subsequently referred to them as Mickey Mouse proposals and again some of them got very, very angry, very furious. But the fact is they had to be shot out of the water. You couldn't negotiate on those kinds of things. You've got to have a basic democratic constitution. You can negotiate on checks and balances. You can negotiate on what goes into the Bill of Rights, on language, cultural or religious rights and so on, the composition of the Upper House, proportional representation, all sorts of democratic themes but you can't negotiate the way they were doing that would have meant a white minority veto and you couldn't negotiate this crazy kind of presidency and so we took quite a robust line on that.
. The other issue that we battled on was the question of who would have the vote and we were absolutely insistent that the four TBVC states had to be included and the way we put it was that you have no right to exclude them from voting. It's going to affect their destiny, their future and we said you can separate the process of re-incorporation from the process of voting. The voting is so they can be at the Constituent Assembly, participate in the debates and they can't be excluded from that. The process of re-incorporation can be a phased one and it can start with this; the restoration of nationality. And the actual modalities of referring the administration, the funding and the continuation of laws and legal succession, all that could be worked out on a phased basis. What was interesting was the TBVC people were very interested in this because they don't want to be on the margins, they want to participate. To us it's unthinkable that 7, 8, 9 million people should be disenfranchised from a Constituent Assembly. So that was the other big battle. The third battle was over ...
POM. How did this work with the arrangements that Working Group 3 were doing?
AS. It was Working Group 4 who were dealing with the TBVC states. I think we actually facilitated a breakthrough there because it wasn't all or nothing and once you phase it the whole thing becomes much easier and then you start with practical measures, I think rather de facto re-incorporation, and then you legalise it on a step by step basis. But we did it independently. It was just an idea we threw out and then Working Group 4 shot ahead of us and actually got quite an advanced agreement.
. In any event we were battling on that and then the other big battle was over an elected Constituent Assembly or not. The government were in a difficult position because they had already agreed to it earlier on so they got all their satraps and peripheral groups and others to start undermining the idea of an elected Constituent Assembly and their idea was that CODESA would draw up the constitution and there would be a referendum to validate it and they said that's democratic. And we had to fight that. We had to fight the argument that there was too much violence for elections to be held and we said, on the contrary elections are a means of reducing violence. It worked after the Anglo-Boer war, it worked after the Second World War, it worked with the referendum. There were right wingers who were threatening all sorts of mayhem and the referendum actually reduced violence even amongst the whites. It worked in Namibia and it would work in South Africa. But in any event any party that thought they would lose in elections would have a stake in maintaining the violence because that would put off elections for ever, and we weren't just speaking in theoretical, abstract terms. We had some very particular individuals and groupings in mind.
. Again, it was difficult for the government to counteract the argument that the body that drew up the constitution had to be democratic. And we said it wasn't simple majoritarianism, it was majoritarianism within a framework, pre-established, agreed upon framework established by CODESA. So, lots of drafts were going backwards and forwards and the idea of the TBVC states participating was accepted and it was accepted because I think it was untenable internationally and internally, it's such a farce these so-called independent states, and the people there would want it. They wouldn't want to be left out. Even the reactionaries wouldn't want to be left out. The electoral principal is also very hard for them to deny so now they developed a different kind of a strategy which we weren't fully aware of and this is where the percentages become more important.
. They started working very strongly towards an interim constitution, so-called, but the interim constitution would be a very full document. It would be a constitution, the new constitution for South Africa, be called interim but it would be drafted by CODESA, it would have a Bill of Rights, it would have a structure of a bicameral legislature that would help the lower house. No, it would have a power to draft a new constitution subject to certain conditions and all sorts of in-built features would operate including regional structures and powers. In other words it would be a complete constitution and where the majorities came in would be majorities to amend that constitution. There was all the difference in the world in saying that we're living in a situation where there's no constitution, we damn well have to find a constitution and we'll sit through the night until we come up with the requisite majority otherwise we're sitting without a constitution. Or a situation where you've got a constitution, it's functioning and it just so happens it leaves everybody who's in power in power and maybe allows a few others to join the driving seat and you can only change that with two thirds, 70%, 75%, 80%, whatever it might be. Because then if you don't get the requisite majority you just carry on with the so-called interim constitution with all the things the government wanted in it which we would accept as a temporary power sharing thing to get to the democratic constitution, we wouldn't accept it for the long term thing.
. And it was only right at the end we realised why the majorities were so important to them. In Namibia the majority didn't matter. SWAPO got less than two thirds. Two SWAPO leaders told me that it was actually lucky for them that they didn't get two thirds so it was like an official joke and they said first of all the final constitution was much better than the original constitution because of the give and take and they didn't have to struggle to get the extra backing. But secondly, the final constitution was signed by everybody. It was unanimously adopted and so it became a national constitution. Now that's what we want in South Africa. We want something that's got sufficient core consensus based on the foundation of majority opinion but bringing in everybody, that everybody will sign. So from that point of view the actual percentages are not all that vital. But when it became percentages, not to draft a new constitution that is basically democratic, that everybody feels roughly happy with, but you need a fixed majority to amend the so-called temporary constitution then the actual percentages become vital. It would be another veto that they would have on any change and that's why they were so insistent on it.
. In any event we had a terrible last week, that's why I had to go to Barcelona, I was suffering from it, a sickness I call it Codesitis, quite a severe one, it's partly betrayed hope and a terrible sense that I unwittingly might have been a party to a degree of compromise that could have landed us in terrible problems. Us, our whole movement, our whole historical endeavour, through naiveté and good faith on our part and through a feeling that we're really on track, that both sides are agreed we must get to a new constitution as soon as possible. It became very clear that that was not their motive.
POM. I suppose what I don't quite get is what were the dynamics going on between you and them at that point where you said first of all you understood there were looking for an interim constitution which hadn't been on the table at the beginning and, second, you realised that they were looking for the special majorities to amend that constitution, that it wasn't a case of a new constitution being drawn up. Third, you were willing to go from 66% to 70%.
AS. Well, hang on, it's those percentages fascinate everybody, but to me they aren't important. They're important more in procedural terms and in good faith terms than they are in actual quantitative number terms, in symbolical terms. OK, so all I've given you now is like the lead in, the run up. But it makes what happened afterwards more understandable. So we had that terrible last week. We were under pressure of time. We were the group that was making all the progress until then. None of the other groups were making any progress. The other groups all made a kind of - Group 1, very little real progress, Group 4 made quite substantial progress, Group 3, these transitional executive committees, are absolute minimum. We had to fight like hell to get a minimum. There's a minimum capacity for intervention, it's certainly not interim government. It's far off from that. But there was something, enough to at least have an agreement that could have been adopted.
. Now we are the one group that's not finding agreement, that can't get sufficient consensus. So we've got these various drafts that are being put on the table and it looks at one stage, we had - what was the committee called? It was called a Drafting Committee, that had Delport and Joe Slovo and Mylie Richards and about five people on it and they would go out and try and draft something and quite a big breakthrough was made when someone from our side said instead of having the Senate the elections are based on a single vote that counts twice, on a nation-wide basis for nationalists and for regionalists. It was something the ANC Constitutional Committee had worked out for the final National Assembly and that there could be regional representation on that basis and once that was established the majority required would be a majority overall and a majority of the regional representatives. And that was seen as the moment of breakthrough and Delport seemed to be very happy with that and he was even arguing for it, he seemed quite elated and he's not a guy who elates easily. So we thought, great we've got it now. That was a sticking point, the regional factor. Now that was a couple of days before.
. Then they come back with their proposal and now suddenly the Senate is coming back in. That really dropped the Senate. There was a clause that left a faint door possibly open for introducing it but the main thrust was against it. Now suddenly they were insisting that the Senate has to be there or at least has to be considered. They will only bargain it away. And then we seemed to be agreed on everything except the majorities that would be necessary in the constitution making body. We had also established the idea of a panel that would decide whether or not the constitutional principles agreed on were incorporated in the new document or left out or violated. We didn't want the Appellate Division, the South African Courts, to do that. We didn't want anybody to be able to come to Court at any moment and frustrate the function of the Constituent Assembly by saying the whole thing's illegal and so on. So part of the package would be, I'm not sure if it was a 9 or 11 or 13 person panel that would decide that there is a procedure and the basic principles were being adhered to. All that was formulated. So then the sticking point was the majorities. We had lots of discussion on our side and there was a core of people absolutely insistent all the way through. Two thirds majority, we don't go up at all. Many of us said well, you know when it comes to a Bill of Rights, that's something you really want national consensus on. It's got to embody certain fundamental values that everybody feels are so powerful, so important, they must be there and they must be there for a long time to come. So we accepted the idea of a higher majority, 75% for that. Two thirds for everything else, the structures and the power relationships and so on. That was our mandate and a very clear mandate.
POM. That was approved by the NEC?
AS. I don't know. Maybe. I forget. There were so many bodies, NEC and NWC, Negotiations Commission. All I know is our basic mandate is two thirds and, I'm not sure, somebody approved of the 75%. Although people were saying if the Bill of Rights includes things like property rights, you see the problem is when it's amending a temporary constitution then it's fundamental. If it's to get to a new constitution without that you can't run the country then you carry on through the night, as I was saying, until you find the solution that's satisfactory and then it wouldn't have been so terrible. And it was also part of our desire to stress the centrality of the Bill of Rights. That's where your protection comes, not from these Mickey Mouse funny Senates and tri-headed Presidents and so on. So it was also a way of reinforcing the special significance of the Bill of Rights and the whole constitutional set up.
. Now we're meeting after hours. I know specifically, I remember very well because I had to give my inaugural lecture the following Tuesday I think it was and I had been putting off and putting off preparations. I mean most of my colleagues spend six months, they don't do anything else but just work on their inaugural, and here I was. Well I said, at least I'll have two days in between the last meeting of Working Group 2 at CODESA and then I'd have two days after that. Well those two days were wiped out and the nights were wiped out. We were working right into the night. We woke up Mandela late one night to discuss the dilemma with him and I must say he was marvellous. He came in his dressing gown and just grinned away. I've adored him for ever but even more so the way he took the whole thing. And then we met early the next morning to discuss it again. And the question we had to discuss was: could we go up to 70% on the overall thing? Now some of us felt, I was amongst them, that if this is what stood between us and the Constituent Assembly and really getting the show rolling and general elections and the people being involved in that, it was worth the three and two thirds per cent, so I argued for it. There were others who were very much against. But the argument was we just didn't have a mandate. Whatever you might feel we just didn't have a mandate.
POM. Now you say this was Group 2, the Group 2 Committee, Working Group 2 Committee?
AS. Internal. No, the ANC people. Not just Working Group 2. Now we're were consulting more broadly. So the people are saying to us in Working Group 2 and it came from Inkatha and Inyanza(?), they said very specifically, if you get 70% everything will go through. So it was really made to look as though that's the only thing that's holding up the whole agreement. And this was central to everything else because Working Group 3 makes no sense without a Constituent Assembly. Working Group 4 has no timetable without a Constituent Assembly. Working Group 1 said very little anyhow. So this was really the central thing. We battled almost through the night, we had virtually no sleep and we decided the only thing to do would be to consult with the Patriotic Front. So we got a postponement the next morning and that was one of the problems that many people in the Patriotic Front were putting heavy pressure for 70%, others were pushing the other way and we said, well our mandate is 66%, but if the Patriotic Front agrees to 70% then we can make that concession and even if we get hell from our supporters we'll explain it afterwards.
. We felt that if that's the way of getting a Constituent Assembly which was central to everything, getting universal suffrage for the first time in South Africa, changing the whole picture of the country, showing up Inkatha for what it is in electoral terms as opposed to murder capacity terms, all sorts of games, we felt we could do it. And that was basically what the Patriotic Front meeting said. It was a difficult meeting. It was all of a sudden, Working Group 2 was waiting for the outcome and a number of people said we don't like 70%, we feel two thirds is our tradition in South Africa, it was used in Namibia, it's the most widely used internationally, we feel two thirds is right, but if this is the difference between an agreement and not an agreement we are willing to go up to 70%. We came back and we reported that feeling. Thank God at last they rejected it. Now we had been given very, very strong indications, as I say, by Inyanza and by Inkatha and it was like indications on the basis of consultations and the Democratic Party were pushing very hard for it.
POM. You say, 'Thank God they rejected it'?
AS. No, no, no. We said, "Thank God now the long battle is over. We're going to get our Constituent Assembly, we're going to get agreement." And they rejected it. Now if they had accepted it there would have been problems for us, there's no doubt about it. We didn't have a mandate, there would have been problems. So some of us were saying they're not going to accept it anyhow because we just believe they don't want an agreement, but all the indications are that they will accept it. So when they rejected it, it did let us off the hook in the sense that we didn't have the mandate and it would have created quite strong problems with a lot of our constituency.
POM. Some of them say that they would have accepted it, that it wasn't the 70%, that it was the rider that was attached to it, that in the event of failure to reach agreement in six months that a 51% majority would prevail. So they saw this as a way allowing you to stall for six months.
AS. No, no. The rider in fact that we proposed at the time was, then you have a referendum and then a two thirds majority would apply.
POM. So when you proposed 70% then ...?
AS. Then if there's more than 50% but less than 70% and there's deadlock for six months, as a tie breaker you have a referendum and then we go back to two thirds and that was all done at the last minute because then we were worried, how can the country be governed in a set up where two thirds of the people want something, a third are holding out and you've got nothing at all. There had to be some mechanism for resolution and that's where we brought in the tie breaker but it was with two thirds. Now we have a proposal where we say 51%, but I'm sure that can be negotiated. But that wasn't the proposal at the time. Now that put them into a panic because they don't want a tie breaker. They wanted to be able to go on and on saying the whole thing's deadlocked and I think that was why they didn't accept the whole thing. And they didn't come back to us and say, "Look this is the only thing that's standing between us." They just rejected it. Tertius Delport was going out every ten minutes to telephone. We were all sitting on tenterhooks, looking at his face like the jury's in now, each time. And to make it worse Gerrit Viljoen had faded out completely. He had CODESA, it was long before I got it, but he also had the scandal where his Department was involved. But he was a bit edgy beforehand, so I don't think it was just that, it was a very taxing period. I can't tell you the, you know week in and week out and you carry on and there are huge historic things involved. But by then Tertius Delport had lost his voice, so he was kind of croaking and Cyril was very tough in negotiating. He's genial and nice and friendly and all the rest, but there are certain moments in negotiations when he comes through very, very powerfully. I think some of the Democratic Party people didn't like it, but he kept saying, "Mr Delport this, Mr Delport that. I'm worried about you Mr Delport. I'm worried about this that and the other." But the fact was Delport was cracking up and I commented on this afterwards in my inaugural lecture that the local Afrikaans newspaper here said after the breakdown that we have to coo like doves, be soft like doves but have the cunning of snakes. Do you know the Bible? You don't know that phrase?
POM. I've heard of it.
AS. So, as I said, he ended up with the cunning of turtle dove and cooing like a snake, because we could hardly hear him. It was a ludicrous note to the whole thing, but it was quite clear that his mandate was not to agree and we were absolutely livid now because we had actually gone out of our way in circumstances that could have caused us severe problems and, as I say, the government let us off the hook by rejecting it, but we would have been on the hook and we wouldn't have backed off if they had accepted the 70%.
POM. When you say it could have caused you severe problems, problems with selling it to your own constituency or problems in the interim?
AS. No, looking back now it's quite clear as the picture emerged, that what they wanted was not a power to, a requisite majority for drafting a new constitution, a requisite majority for amending a constitution. It would have created severe problems in practical constitutional making terms. But we weren't fully aware of that at that stage, that only came out afterwards, particularly when they got into such a panic over the referendum, because that's what scuppered them. And it was one of our colleagues just threw that out at the very last minute. We were saying what happens if two thirds want - people were saying to us, what happens if there is a two thirds majority for something and 25% or say 69% want something and 31% are against and we can't get agreement, then the government just carries on for ever like that and we're deadlocked for ever. So then as a tie breaker we said, OK a referendum with two thirds. And they got into a big panic over that and suddenly when they got into a panic over that we realised the interim constitution was meant to be the permanent constitution subject to amendment with this high majority.
. And I can tell you now, I don't swear before God or anything like that, but I felt so angry afterwards. You know we used to jokingly describe the negotiators on our side as the breakthroughists and the trappists. The trappists weren't the monks, the trappists were people who saw a trap in everything that came from the other side. I was a breakthroughist and we used to say, "You know you guys are so bad, if the government says one person one vote you'd say reject it, it's a trap." But the trappists were right, looking back now on that whole period and we were making all the concessions towards the end and they weren't meeting us. They weren't looking for a way out. It was clear they wanted a deadlock. Then they got a big fright when we refused to simply report that we've agreed on a, b, c, d, e but we couldn't agree on f, g. That also gave them a big fright.
. But by then now we were feeling, to use a soft English word, we were feeling miffed and we realised that there's much more to the whole thing than just a negotiating problem. It was not a negotiating problem. People say if the negotiating format had been less clumsy and had smaller groups and so on we wouldn't have had this problem. Rubbish. We'd have had the same problem, it would have taken another form. There's a lack of meeting of minds on the basic concept of what we want, on democracy, on how to go forward and it's really that they won't give up power. I'm just speaking - I'm not making propaganda or running for office or trying to canvass your support or votes or anything. But for the record, for history, for whoever judges these things I have no doubt whatsoever that they did not want an agreement in Working Group 2, full agreement, they wanted a near agreement.
POM. What would you, as a result of going through that process, what would you say are the main differences between your definition of what a democracy is and their definition of what it is? Where do the values differ?
AS. The difference is how one conceives of shared responsibility for the country, running the country and it boils down to voluntary coalitions versus prescribed coalitions. And the point that we made was that if the majority, having been elected and given a mandate, decides that in the interests of running the country and in the interests of training up a new generation, in the interests of avoiding sabotage, it makes good sense to have a government of national unity. That's an expression of majority rule and it will work and it will satisfy the majority if it's built into the constitution. In other words, de Klerk is there for life and the most you can do is sit at his side and influence his judgement, then it's doomed and I think that's really what it boiled down to. I still think that they can't accept a black President. They are willing to share the Presidency with a black in the morning and a white in the afternoon and somebody else in the evening.
POM. I was going to ask you that as a first question but it comes in now, and that is that when whites were voting in their referendum what were they voting for?
AS. They were voting for their jobs, they were voting for security, against isolation. The whole propaganda, the word democracy wasn't used once. It was support for de Klerk and his initiatives. It was support for negotiations and the crunch was, I would say the crucial element that brought such a big majority, was a document that was sent out by employers to white employees saying that it was your duty to vote, the future of the country is at stake and we just want you to know that if it's a no vote there will be sanctions and we can't guarantee you your job. It was as crude as that. I think that's why they voted because they wanted sporting tours to continue, they wanted investment to come and to end the isolation.
POM. I ask the question because abroad when one listens to reports of the BBC or National Public Radio or reads in The Post and The Times and The Guardian or whatever, they were all couched in terms of this being a process that de Klerk had launched which would bring about the sharing of power between blacks and whites and the news clips, and I subscribe to two news clipping services, all stated it in those terms.
AS. We believed that and I was London the next day speaking to an alumni of the University of Cape Town who was euphoric. I thought, great we're on track. It's really going to roll now, we're going to speed ahead. We came back a week later. The first shock was the reintroduction of the death penalty and a greater ... has no government than to take the lives of its own citizens. It was unilateral, it was ugly, it was mean and issue after issue cropped up in the same way. You found the SABC becoming totally partisan and then the journalists started telling us with a kind of cocky thing that journalists have when they've got some inside knowledge, the government saying, now we're playing hardball with the ANC. And I was angry because hardball isn't even a South African term. They took it over from you guys. At least if they've got to use a metaphor let it be a home grown one. But that was their line now and it made me worry that all that happened up till then, CODESA 1 was to keep us on side and not to rock the boat while they were dealing with the right wing. Now they've dealt with the right wing and they had pushed Inkatha aside a little bit in that whole period. That's why we really thought we were moving. Now they're going to go for us and they have become much more pally with Inkatha in a very aggressive sort of a way. They did nothing about the hostels and cultural weapons. It was happening in CODESA, outside CODESA. Arrogant in way that only they can be arrogant. Unilateral decisions on everything whereas before at least they were pretending to consult with us on a whole range of things and the whole attitude just became completely different. But we still hoped that somehow CODESA 2 would come off and what we want above all is a Constituent Assembly.
POM. I'd like you to maybe take from the deadlock at CODESA to collapse, to walkout, and subsequent events which many people have presented to us in terms of a power struggle within the ANC between hard-liners, the radicals and the realists, between SACP and COSATU versus the moderates.
AS. Let me ask you a question. Would you call me a hard-liner or a soft-liner?
POM. I'd call you a soft-liner.
AS. OK. Even my book was called The Soft Vengeance.
POM. You're pushing my kind of analytical powers here you know.
AS. I don't mind saying I argued for breaking off and I said there are two things, well three things. One is I was convinced there wasn't good faith at CODESA 2 for the reasons I've just given at some length. And there were two concepts of democracy and that we wouldn't get over this simply by sitting down at the table and carrying on. I know that as a lawyer that you settle a case if both sides want to settle it and there's no other way, then you settle it. If it seems there's another way to one side then you don't settle and you can carry on talking until the cow jumps over the moon, you don't settle it. So even as an Advocate I just felt we had to have a break.
. But also the stuff about General van der Westhuizen was coming out now and maybe that angered me specially because - and I've never been angry since the bomb you know. It was the first time I started feeling a kind of personal anger. Not just that he had signed the death warrants to permanently remove from society Goniwe and the others. He's up there now. He's the Chief Adviser on security. And then it turns out he was sending people to kill Coetzee in London as well. It's still going on, with all the killings everywhere. It was like too much. It was too much now. There was no good faith at the negotiating, there's no good faith on the ground. We have to do something.
. And I said the other issue was the question of political prisoners. They're keeping our people there as hostages for bargaining. To get at MK, for all sorts of other reasons and it's totally intolerable and I feel ashamed. We promised them when they were on hunger strike well over a year ago, don't worry, don't kill yourselves, we'll get you out soon. And they had to be out. And I said unless we take some clear stand the government will be happy and say, well there are some problems and hiccups but we're talking and the international community and internally people will feel happy.
. In the meanwhile our members were seething. The trade union movement was seething. People were totally pissed off, more than miffed, and feeling that CODESA has become a show to legitimise the government and not to achieve any change. Nothing has changed from that point of view. The atmosphere has changed in this country. We can do things, we can say, we can talk, but how people live, how decisions are taken, how laws are made, who sits on the bench, who runs the police, who runs the army, who owns the land, who are the bosses, nothing has changed and there isn't even movement towards change in any of those respects. It was just all too much. Many of our people felt, and we had debates at that stage, that negotiations are so important and it's so easy to break off and so difficult to resume that maybe we shouldn't.
. I'm saying this because, as I mentioned, I'm one of soft liners. I don't know how you can classify me, the last Communist Party meeting I attended was in September 1963. In the United States I still have to fill in a form, "Do I belong to The Communist Party?" with a capital T, not even a small t, "of the world", not of any country or any place. But the fact is that if I felt like that there are many others who are much less negotiation prone than I am must have felt much more angry. And still the feeling was if we can save negotiations at all we must. But there was less and less conviction. And then when Boipatong came that was just it now. The majority was already clearly in favour of breaking off and Boipatong was just the last straw.
. I might say that subsequent events have, as far as I'm concerned, totally vindicated the position. We've made more progress in the last couple of months, in at least beginning to get a shared understanding of the country that we want, than we made in all the months of talking beforehand. We've got out of that shyster kind of a thing of playing with words and sneaky agreements and doing stuff for public relations and international consumption and to persuade the diplomatic community that you're doing well. And we're much closer to the hard realities in this country, both ways, of power, the need for change. We've dispelled for ever this idea that we're just a few radicals in the ANC who want these things and they will be exposed. The masses want change, the masses want to see change. And also this idea of these two groups, I keep hearing about it and I come back to the ANC.
. We have fantastic meetings in the NEC. I love them. I love them. I don't like political meetings, I hate them. I've got a credit balance if there is transmigration, reincarnation, I've got a credit balance on meetings for the next six incarnations that I might have. But for NEC meetings I'll drop anything. I would have gone back from Barcelona, from the Olympic Games for an NEC meeting. They are so interesting. The quality of debate is very high, there's virtually no demagogics, we listen to each other, we change our mind as things go along and of course there are different trends and emphases and some people push more for this and some push more for that, but we actually work very well and I think that this is fundamental to democracy in South Africa because if we don't function democratically the country demagogics get a chance. If we function democratically it's not a guarantee that the country will be democratic, but it's a fundamental pre-condition and we have absolutely super debates and discussions with a lot of interaction and a lot of interchange and everybody listening to everybody. And if you try and label people it's extremely difficult. Some people on some issues go this way, on other issues another way. Maybe three or four people are almost consistently on one side or the other. I doubt that you could predict how more than ten out of eighty five people, what positions they would take on any of these issues.
POM. On the mass action, do you believe that the government was sent a message that the black community is solidly behind the ANC in its demands for change, that the political response, that they will see the need for a political response, that they know, not that they can be forced from power but that continued rolling mass action or whatever will continue to undermine the position and the legitimacy of the government?
AS. I don't know what goes on in their heads and I don't mean that in a purely sarcastic sense. But what they do know is business almost detached itself from government. That would have been spectacular if that had happened, that the international community which was going along, because they were being slowly legitimised everywhere and their plan was to get back into the UN then with Pik Botha, through the OAU, maybe bribing an African politician or two on the way, that's the way they work through bribes and back doors and pressures and public relations and so on. It's not clean, that's why I feel so indignant now. You can cleanly represent reactionary positions, that's not unjustified or unrealistic or wrong. You fight for your interests and then we cleanly fight for our positions and then we battle and we bat each others noses but we try and find some kind of common ground. It's just been like that in the last period. So they've lost out in terms of the business community and they've lost out in terms of the international community.
POM. There is no doubt in your mind that the business community has moved from being supportive of the government to almost being in support of the ANC?
AS. They are not supportive of the ANC, but I'm hearing business people say now, well ANC economic policy is not so bad. I've heard that on quite a few occasions.
POM. But they've moved into a position of putting more pressure on the government to bring about change.
AS. There's a sense that the government can't pull off the trick. Can't manage the whole thing. That's from the business community and from the international community that kind of illusion that de Klerk is a great guy, leading South Africa to a new dispensation, is the Gorbachev of South Africa, it's kind of gone. And in the black community it's gone. They showed the other day his personal popularity rating, is he doing a good job? From 66% amongst blacks it's down to 22%.
POM. What poll was that?
AS. Some run their own polls which release when they want to release and they're still relying on 22% of the blacks voting for them. And I know that blacks were saying he's done a good job, he's broken the logjam. Give him credit for that. That's gone now. And the feeling is that he would rather protect his cops and the military and the people in the state than sustain that image and reputation that he had for being the person who solves problems.
POM. What do you personally believe as you evaluate his performance over the last two years? Reformist and yet he has never taken the kind of strict actions you would think he would take on the security forces. If he were a political animal, I mean if he really wanted to get black voters he'd say, I'd be seen to be doing something in how I respond to the problem of the security forces. One, your evaluation of him. Two, and the question that has been posed over again and never answered fully by anyone : is he in control of his own security forces or is he in a certain sense hostage to them, under constraints on how far he can go?
AS. OK. This will have to be the last one. Tiny little question you're asking! First of all I think it's not just de Klerk. I think it is the Broederbond and Saatchi and Saatchi. It's a very interesting mix. Saatchi and Saatchi for the selling, but the selling becomes almost an end in itself, in the personalising of de Klerk and the identifying the policies and the programmes with the president and the power will come through the president. So the projection becomes almost as important as the message. I don't just mean it in the ordinary advertising sense. I think it actually influences policy. The policy is what can we get away with, what will go down well overseas, what will go down well with the white community here? That's their basic concern. They have contempt for blacks in their hearts most of them so they feel they can win over the blacks through bribery, corruption, pressure, one way and another. I think that's kind of important for most of them in relation to the future.
. I think the Broederbond policy is that it's adapt or die. It's an old phrase. That we will agree to power sharing as long as we maintain control over the army, the police force, it's one of the conditions, we don't give in to majority rule. Then there are some other conditions about Afrikaans, there's no problem with that, that's not controversial provided it's not above other languages but it's got a secure status. The free market principle they introduced having benefited from the state for decades. In fact they won't let go of the state. I said the other day in a debate with one of their guys, if you people are so much against the state why don't you privatise yourself and give up the government and let those of us who want to take over, from across the board, you've excluded not just blacks, you've excluded English speaking whites and all sorts of other communities and groups and so on, and let us get in there. They need the state, they need the state not just for power but for jobs, for money, for influence, for contracts. It's become part and parcel of contemporary Afrikaner nationalism, Afrikaner capitalism. A very cosy relationship with the state and I think that's one of our big problems, not just government in office. It's the state as a source of income and a secure position.
. In any event I think that was part of their project and so the idea then, the whole project was not to democratise South Africa but legitimise their rule and the only way you can legitimise it is by bringing blacks into parliament, into government, getting international acceptance but in a way that would keep them either in control or at least giving them a veto.
POM. A very sophisticated form of co-option?
AS. Yes. It might even go beyond co-option in the sense of veto as the last resort and maintaining control of the army and the police force and the state machinery. And that's like their kind of bottom line. And these are the big gaps between us. If we can agree on these things and processes and guarantees of personal job security and all the rest, the technical side, we can in a weekend overcome the technical side.
POM. Can de Klerk?
AS. Does he control?
POM. Is he limited in his own manoeuvrability?
AS. I don't know. We are much more open than they are. Everybody knows what goes on in the ANC and I might mention that that's another thing that irritates me. It was said in the press the other day, the government is well informed about divisions in the ANC because, especially Kobie Coetsee the Minister of Justice, because he works with the National Intelligence Service, and what the hell is the National Intelligence Service doing by keeping tabs on the ANC? It's not their job. It's unthinkable. But in the South African context that's regarded as normal. I don't think they listen very well to our debate, if they did they would learn something. They still have that kind of cop mentality. They still see everybody as a sort of a gang and the goodies and the baddies and the ring leaders and the followers and so on. So I don't know about this control thing. I must say I read an article by one of our guys on the structure of the security apparatus.
POM. In Work in Progress?
AS. Yes. That I actually found very persuasive and it indicated that de Klerk is less in control than I would have thought. But I think that if he could get that control he would get massive support if he went for it, all of black South Africa, business would back him, half the Afrikaner establishment would back him if he went for it. And they can choose their issues. All the sleaze, I mean we hear that they're collecting sleaze on the ANC to win the elections. We're not a sleaze free organisation, none of us is sleaze free in our lives and so on. But they can collect sleaze if they want. Not even sleaze, it's there. They're killers, they're corrupt, they bribe, they murder, they're merciless. They can create a climate, it's the easiest thing in the world to do. So I think he doesn't want to. And to say that van der Westhuizen is a guy who's helping him against the military I find totally unconvincing. I don't know if you see it in that way. That he is helping de Klerk control the military. I find that totally unconvincing. Van der Westhuizen, the military intelligence. You're listening to the tune and not the lyrics.
POM. Two very, very quick questions. What is the absolute, of all the ANC demands, opening positions or whatever in negotiations, what is the one issue on which it would be least likely or simply not likely at all to negotiate, say this is not negotiable.
AS. Democracy. The basic democratic format and a decent democratic constitution is not negotiable. What is negotiable is the phased transition and we were even agreeing to sunset clauses which I understood to mean certain job protections and so on that made sense. Even the amnesty with it's full disclosure I think is on the cards. There are a whole lot of things one can negotiate around that. We can negotiate on land, we can negotiate on reconstructing the civil service, the army the police force and so on. But this concept that South Africa belongs to everybody, that we're all equal, that there are no minorities and majorities, that we have a decent government with ordinary checks and balances, I would say that's not negotiable.
POM. Will the government go back, when they do go back to the negotiating table, in a relatively weaker position in your view than they were at the beginning of CODESA?
AS. Absolutely. I have no doubt. They've lost internationally, enormously. At the very least their supporters internationally wanted them to be in control of the situation, able to manage it, quite independently of the moral high ground that they might or might not have occupied. It's quite clear that there's enormous black opposition to de Klerk, that he doesn't speak for the whole country, that it's not just a few hard line radical trade unionists and ANC and Communist Party people who are holding things back. I think it's clear that internationally, I was watching CNN between the discus and the javelin and so on, and they gave very glowing reports about the maturity and the calmness and the discipline of the marchers and the moderation of Mandela's speech and so on. In that sense we're in very good nick. There's a good tension between those who want to just carry on fight, fight, fight until we hoist the flag and those who say we've got to fight but also we have to have the broader vision all the time, see it in context, bear in mind the psychology of the whites as well as our own psychology. I think it's a good thing, we need both. So far from it being a war between two opposing gangs within a gang it's actually a very good directical interaction.
POM. As we walk out the door, when you began you said that the National Party had, or the government in wanting to postpone elections, had talked about the level of violence making elections not possible. Do you think that if current levels of violence persist that you can have elections that could be construed as fair and free?
AS. Absolutely. That's the reason for having the elections and having people on the ground to ensure that they are free and fair. And in Namibia it was the elections that turned that country round completely. There was civil war beforehand, people were killing each other. It was terrible ugliness and tension and elections actually introduced a new dynamic of contest. Of course UNTAG had quite a big role, and having the UN observers by the way made a big difference to the success of the stayaway. Yes, I think that on the contrary and the indications now that Inkatha is pulling back to its home base. They are losing support even in the rural areas in Natal, and pulling out some of their killers from the hostels. There are indications of that happening so that hopefully the level of violence will reduce in the Transvaal. But it shouldn't be conditional on that. The minute you say that the level of violence justifies postponing elections you ensure that they're postponed. And there will be more violence rather than less violence.
POM. Thanks very much.