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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
28 Mar 1995: Moosa, Mohammed Valli
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POM. I remember last year when we started out that I asked you how did you rate the constitution on a scale of one to ten and you gave a high number, you gave it something in the region of eight or nine. My question is will the Constitutional Assembly now start from scratch and rewrite a constitution or will it take the interim constitution as a starting point and amend or refine it in areas that it needs to be refined?
MVM. There are two ways of looking at it, the one is that the decision of the Constitutional Assembly and the injunction on the Constitutional Assembly on the interim constitution is that it should draft a new constitution without using the interim constitution as a point of departure or as a departing point. [except for those provisions which the Constitutional Assembly ...] But other than that, that is the view personally which the ANC has in the Constitutional Assembly, that they engage in a process of drafting a new constitution.
POM. Do you find that there is a difference of opinion on this with the NP in particular?
MVM. I think there is. The NP of course is of the view that we should view the interim constitution as a working document, that it should be the starting point and that there is (no need to rewrite it) but we should simply look and see whether we want it to be transferred to the new constitution or not. Now the ANC has had, I would say, the philosophical outlook all the time, all along, that an elected body must draft the constitution and therefore from a necessitative point of view we don't want to take away any of the power of the elected Constitutional Assembly nor do we want to undermine the status of submissions which various organisations are making to the Constitutional Assembly, undermine the public participation programme that we have with the public in the new constitution making process. However, in practice I must say that it is quite clear that the interim constitution would certainly play a big role in the drafting of the new constitution. The members of the Constitutional Assembly and all the political parties I think would certainly take into account what is in the interim constitution. The interim constitution has also created a reality that exists favourably in the country, it has established provinces, provinces are working in a certain way and that reality is something that would have a major influence on the new constitution.
POM. ... federalism where you have people in a more necessitative role than it did when the negotiations were on the interim constitution?
MVM. I don't think so. My personal view is that the National Party would want something very similar to what is in the interim constitution. I have not heard them wanting any more federalism. As far as the ANC is concerned I think there would be a debate in the ANC about whether we maintain the present stand of decentralisation or whether we don't. But at the end of the day I think the ANC will probably settle for pretty much what is in the interim constitution. There will probably be more of a debate in the IFP.
POM. What struck me going around the country and talking to ANC premiers, almost to a man they are going more federalist than they were a year ago, looking for more power and wanting to do this and that and resent the strings being held by the centre. So could it be a case of some differences within the ANC itself than it previously had been?
MVM. I think there would be. If you look at the draft discussion document that the ANC has put out in preparation for the Constitutional conference that is taking place this weekend in Johannesburg, yesterday there was an article in the Business Day where the Gauteng Provincial ... of the ANC criticised, that discussion document got strangled precisely on those grounds that it does not give sufficient power to the provinces and they criticised the government for giving the provinces even less powers than they have presently. And I don't think that the ANC provincial structures will accept a situation that promises them even less powers than they have presently, they want more.
POM. What part of the constitution do you think has worked most effectively and what part least effectively?
MVM. Well I would say that generally the constitution as a whole has worked very effectively up to now. We have of course made a number of amendments to the constitution, the interim constitution, since April last year, but those were rather technical amendments, there is no significant amendment that has been made to the constitution nor have we found that need in practice. There may well be aspects of the constitution which perhaps have been irksome but I don't think it would be fair to say that any major section of the constitution hasn't been very effective. I think it has been very effective.
POM. I see a kind of a contradiction here. You gave the interim constitution a very high rating last year, you say it is proving very effective and yet you are talking about putting it to one side and beginning the process all over again, it sounds a little bit like re-inventing the wheel.
MVM. You're right, it does sound a little strange, but as I was saying, what I was trying to point to is that there is from the philosophical point of view we are drafting a new constitution. In practice the interim constitution is going to be very much the basis of the new constitution. But if you ask me what does the Constitutional Assembly do, I would say it is drafting the new constitution, it's not amending the new constitution, it's not trying to update the interim constitution or rewrite the interim constitution. It is engaged in the process of drafting a new constitution. Now the fact of the matter is that in that process it is likely to draw on the interim constitution quite significantly.
POM. I think that's specifically tautological. How will the concept of constitution making differ from the process which was used in Kempton Park?
MVM. The main difference is that the Kempton Park process was about negotiating a settlement in the country at that point in time. From our point of view it was less of a constitution making process and more of negotiating a settlement. This time round it is a constitution making process. It is a process of drafting a new constitution, we are not negotiating a settlement. Objectively, looking at the situation, we are not trying to negotiate an end of white minority rule and replace it with a mandatory democracy. That's the central difference I would say and therefore members of the Constitutional Assembly and the various theme committees and other structures are not so much concerned about how to settle the country, that conflict doesn't exist. They are in their outlook agreed on thinking about what is the best constitution this country should have.
POM. Now you mentioned the change from minority rule to rule of the people, most of the people that I have come across would say that this government rule is not democratic rule but for the system to be truly democratic there has to be the process of change in government. Within the situation right now where the ANC commands two thirds of the popular vote there is not much prospect in the future for there to be a change in the government in terms of party, maybe in terms of personnel, but not in terms of party. How do you reconcile that fact, that in a way you have one party rule which you view as democratic, how do you make one party rule democratic?
MVM. Well I don't know why you talk about one party rule because, as you say, in a democracy there should be, the possibility should exist for one party to lose power and another party to be voted in. Even the present dispensation allows for that possibility and certainly in the future that possibility will exist. It is a separate matter that a number of terms of office one party may be the party that gains most of the votes, but the fact that the ANC commanded almost two thirds of the votes in the last election, will probably be the majority party in the next election and perhaps in the one following, that is not anything out of the ordinary in democracies elsewhere. The Conservative Party in UK has won a number of elections consecutively and nobody ever said that's not democratic.
POM. It's difficult to establish truly democratic institutions and to bring about the reality of democracy in a situation where one party really has control of all the levels of power.
MVM. It depends on your system. I would say it depends very much on the system which you have. We are developing a system in which a number of things would happen. Firstly the majority party forms government. If that doesn't happen I think that one begins to place constraints on the type of democracy. That's democracy delimited. At the same time you don't only have central government powers exercised through a variety of means, you have provincial governments and you have local authorities. Provincial governments, as you can already see, may not always be controlled by the majority party at central government level and that one would find perhaps a greater degree of flux at provincial level. Then at local authority level there again one would find that it is quite likely that a number of local authorities would be controlled by parties other than the majority party and the party in power in a particular local authority may change more frequently than what happens at the national level so that there is that sort of dispersal. On the other hand there are other mechanisms, there's the parliamentary system, there's the system of standing committees, all of those kind of institutions that really make a democracy.
POM. To me the essence of democracy is the tolerance of difference and there have been a number of recent polls which indicate that the supporters of each party voted overwhelmingly against allowing opposition parties into their neighbourhoods, the candidates or both. There was something like 80% of them which indicated a very high degree of intolerance for political difference. In a situation like a local election where you are talking about questions of land rather than a system of ... this would make electioneering very difficult.
MVM. I must say that I think there is an under-estimation of the extent to which democracy is advancing in this country. Let's look specifically at local authorities, let us look at what's happening presently in local authorities. Over the past year or so, and in some places over the past two years, we have had negotiations taking place at a local authority level between statutory organisations and non-statutory organisations, these negotiations have been taking place in separate forums. The local authorities work quite independently and are autonomous from other forums. We have had something like five or six hundred separate negotiating forums throughout the country and here you had, in those negotiations you had people who were part of the system in the past and those who were not part of the system sitting around the same table. At those negotiating forums they needed to arrive at a settlement about how that particular local authority is to be transformed politically, how the old apartheid based local authority could dissolve and how they would be replaced by democratic local authorities. Those negotiations by and large have been completed quite successfully throughout the country where the people themselves have succeeded in setting up transitional structures consisting of local councils which exist now. In all of these areas we have transitional local Councils which firstly, some of those agreements have got the old kinds of ... so you dissolve and you now have appointed councils which is a very inclusive approach and these transitional councils are responsible for organising elections for a number of local authorities which will take place on 1 November. All of this is taking place at the local level. It's not being organised at national level as such. And that indicates to me that there is a high degree of tolerance at local level. How else would it have been possible for all of this to have happened? How would it be that you have almost quite willingly the old local authorities agreeing to dissolve themselves? This is not an easy thing to do.
POM. Has it happened in what would be called right wing constituencies where the Conservative Party were in control?
MVM. Including the right wing constituencies. There are one or two towns here and there, sprinkled around, where they are still having a few problems, but by and large in 96% - 97% of the towns it has happened, including in right wing controlled towns in various parts of the Transvaal, which I think has been a phenomenal development and it bodes very well for the possibility of elections in which there will be a great deal of tolerance.
POM. You were talking about even in right wing towns that they agreed to dissolve. Just talking a bit about the local elections we have heard from so many sources that registration is low but beginning to pick up, that people don't know why they have to vote again, they don't know what they're voting for, they have no idea of what local government is, why should they be asked to vote again when the last government hasn't delivered anything to them? What are your comments on that?
MVM. Well I group the four observations you made, voter registration is not going terribly fast and that the majority of voters have not as yet registered. We have of course been constantly trying to understand what it is that is making the whole process as slow as it is going presently and there are a variety of reasons. It's very difficult to generalise because from area to area you will find different reasons why the registration isn't taking place. I must say at the outset that in some areas the level of registration is very high. We had a report in the Parliamentary Standing Committee from the co-chairperson of the Election Task Group, and there it was reported that there are signs that registration has reached a very high level indeed in some areas, 67%-80% will have registered. But of course those may well be isolated cases at this stage. Most black people have not had any notion of local authorities within their realm of experience in the past so the first thing is really for people to understand what a local authority is, why they need the local authority and why it is important to ensure that there are good people running the local authorities. So that results in some kind of apathy.
. The other reason that we've been picking up is that there's a kind of wariness and suspicion amongst people about the registering, giving their names and addresses because they think that this may result in some action being taken as a result of them being in arrears with rent, service payments, etc. But I think the other big reason is that voters are not being reached. I think that's a very important reason. You have a lot of publicity on radio and television and in the newspapers but we are not reaching out to voters. One of the biggest problems is that because these elections are being conducted not by central government but by local authorities themselves it's very difficult to say to voters on national television where you should go to register. So a lot of people actually don't know where to register because in different local authority areas they would be registering at different places. Many of the local authorities have employed enumerators and are sending them out door to door, but I think these are not really reaching out to people sufficiently, I think that's a major problem. Also that political parties themselves are not in the habit of ensuring that voters' rolls are compiled in the proper manner and this is an important role which political parties themselves have to play.
. However, let me say that we are not panic stricken, we didn't expect that voters would rush out to register, leave everything and rush out to register. One shouldn't need to be a sociologist to be able to predict that there wouldn't be the same level of interest and excitement for this election as there was last year, firstly, but also if people have 90 days to register they generally don't register until it looks like time is going to run out. Also a lot of people, and I think a lot of political parties, expect that it is possible that the closing date for registration would be extended so there isn't that sense of urgency. We've been trying to inject a sense of urgency and I think very few of the political parties really seem to have managed to express any kind of sense of urgency. Then of course there are the vast rural areas, about ten million voters live in the rural areas and there is very little infrastructure in the rural areas to ensure that voters are registered quickly and effectively. So there's a whole range of problems.
POM. How about people who live in squatter camps and they don't have a fixed abode and there seems to be no system in place that allows them systematically to register?
MVM. What's happening is that local authorities have been sending enumerators out into the squatter camps in order to register people and taking into account that there are no formal addresses, no house numbers, etc. The general approach that has been used is to divide the area into sort of flats and people are being registered as a person living in a particular block as such, so that it's a rather crude way of doing it but it does allow you to be able to identify people. One of the reasons for having the voters' roll is to be able to demarcate wards and the fact that people vote in local authority areas where they are entitled to vote. So it's not an insurmountable problem, it's being dealt with.
POM. Let's talk about Saatchi & Saatchi for a moment. It's hard to understand how an advertising firm which had had as a previous client the National Party but now picks up the most important elections in the country, the local elections, to provide the delivery of services. Two, they seem to have a campaign that is manned by the new inept, and all these posters say 'Register' and that the problems with the electorate is that finding some solution ... and to run a second election on the basis that if you vote for us we will deliver. It is in a sense kind of confusing to the average person. I would have thought that, as you said, that there would be much more indigenous campaigning based on indigenous ... rather than just mass ...
MVM. Well we have the local government elections Task Group, as you know van Zyl Slabbert and Shubane, and on that Task Group we have representatives of all the provinces. The provinces play the most important role in these elections. They have to deal with all of the ad agencies. The Task Group is specifically dealing with communication and voter education as such and it is the decision of that Task Group what is to be done. There was no political decision about it. I would just like to say that there has been, I think, criticism of the campaign that Saatchi & Saatchi is running. In fact yesterday the Parliamentary Standing Committee in Constitutional Development and Affairs and they have invited a number of non-governmental organisations to that meeting and they also invited Saatchi & Saatchi at which they asked Saatchi & Saatchi to make a presentation and criticisms were made. So we are looking on an ongoing basis as to how to improve the communication campaign. You must realise, however, that the entire communications campaign is not being run by Saatchi & Saatchi, they run the national campaign. Many of the posters that you would see in the streets of Johannesburg or Cape Town are actually part of the local communications network. Every local authority area has got its own voter registration campaign, voter education campaign. And the provinces are also doing their own thing so I'm not going to for a moment defend Saatchi & Saatchi, but not everything that's happening has been done by them.
POM. It seemed to me you put your finger on it when you said, 'somehow we're not reaching the people'. What kind of job are they doing? What do they know about the needs of the black community for example after they have served the National Party? Are you in fact trying to maintain apartheid?
MVM. We should call these guys in as advisors. You seem to have a lot of ideas here.
POM. Talking about this campaign, you seem to have three campaigns going on simultaneously. You have the local elections campaign, you have the African campaign and you have the RDP campaign. Many people are in a state of confusion as to what is what and through which everything will be delivered, tied up with responsibilities, tied up with the government's blueprint for the future, we live or die on the implementation of the RDP. Again, going around the country, we found that when we mentioned the word RDP to the ordinary person it meant nothing at all to some premiers; they have different interpretations of what it's all about. Provincial MPs for the most part had a glaze in their eyes. My first question was, this has not been communicated in a good way? Two, when I come to the question of asking people who's going to pay for this, in the end everyone shrugged their shoulders. We're not going to do that out of domestic funds, we're not going to do it out of budgeting cutbacks, the economy will have to go up not down. As a plan it seems to have problems. Is that a matter of discussion?
MVM. Well it is a source of major concern. Firstly as far as the many campaigns are concerned, I don't think there are too many campaigns. The voter education campaign is a good campaign and so is the Masakhane campaign, but the two do dovetail each other I think. As far as the Masakhane campaign is concerned you may be aware that the government ... it's an inter-departmental sort of thing. As far as upgrading services are concerned and providing an adequate level of services to everybody, I agree with you that the estimates do run into twenty to thirty billion and that money isn't available at this point in time, that's the fact of the matter. It's a source of major concern as to what kind of strategy can be developed as it happens. I don't think we've been able to do that just yet. I think that the RDP strategy has been able to identify strategies in terms of which we will be able to make significant inroads towards rehabilitation of some of the services, upgrading, extending in some areas, but the structures are only going to work if we are able to find the money at the end of the day. Part of what the Masakhane campaign is all about is to say that there isn't going to be money from the RDP fund necessarily for all the services but there will have to be, to open it up a bit, working of government together with non-governmental organisations and communities and it's clearly a long term process for providing adequate services for everybody in South Africa.
POM. Like people paying their rent, paying for services. You can't deliver them and ...
MVM. I think that it's not such a big dilemma as it seems. I think that on the face of it, it looks like a big dilemma, but if you look deeper you will see that if you look at the electricity in Soweto that it is going up and that in those areas where services are being provided and I think it's possible for us to increase the level of payments. It is possible to do that, [you don't need to do any] the system's in place and you've got the administration. You need to show that there is a real determination on the part of government to improve things. I think it's going to happen.
POM. One thing I would point to is the housing. Just looking at Tokyo Sexwale's statement that he would build 150,000 houses a year, and that nationally only about 800 houses have been built in the last year. It is a stupendously low figure. The record of the National Party in this regard is better than that of the government of national unity.
MVM. Well, surely the planning stages couldn't have spanned only a few weeks. There is a lot involved in the planning stages. I don't think you could have expected houses to be built as from May last year. The whole sort of programme was getting under way.
POM. For a moment I would like to speak about Winnie Mandela and the fact that I have never seen so much fuss made over the firing of somebody from Cabinet which wouldn't have happened in other countries. [Is the Winnie Mandela factor ... Services and house or whatever are not included.] Has she any real political support base?
MVM. I think she is a leader in her own right and she certainly has a support base, I don't think there's any question about that. I don't think that those are the only factors that have generated so much interest around the question. The fact of the matter is that there is a particular history that has surrounded the person over the past two years and that obviously, in my view, has created the kind of interest around these things that does exist. Also the peculiar relationship between herself and the president which brought about another situation. There isn't another comparable situation like that, she is his legal wife, isn't she? The first person that he dismisses in government. There is something special about it but I don't think it's simply related to the fact that she may or may not have a huge following, not that that isn't a factor. Of course it is a factor which politicians would take into account when dealing with her.
POM. Just one or two other things and one would be Buthelezi and the question of international mediation. Now it seems to me that for once he may have the moral high ground here. The ANC and the government did sign an agreement that called for international mediation and now they say there's no need for it, that the issues have been resolved, but they haven't. Why can't you have international mediators who might sit around the table with Mandela, De Klerk and Buthelezi and say, "There's nothing here to mediate, thank you", and you would have fulfilled the obligation that there had been international mediation by merely having these mediators saying there is nothing to negotiate. Is Buthelezi playing brinkmanship again and would you expect that political violence in Natal would start to shortly escalate as you approach the November deadline, particularly since you are now talking about specific areas that belong to one party or the other? The third thing is on the Truth Commission, what your personal views are, the strategy involved and where it should go, what should be the consequences if a minister sitting in government ordered hit squads, should he be required to step down from government immediately or what would you say?
MVM. Well on the question of the international mediation we did not see the need for international mediation even last year. We, of course, entered into that agreement because it was the sensible thing to do. The truth of the matter is that we entered into an agreement which says that international mediation shall take place as soon as possible after the elections to resolve the outstanding demands of the IFP in relation to the 1993 constitution. It has got nothing to do with the new constitution. And our view has been a very simple one that if there are outstanding demands of the IFP then it should be possible to find out what these outstanding demands are and you can only subject yourself to mediation if you have an agreement between the parties that there is a dispute over some or other issue and that is what has to be established. So we are not opposed to international mediation at all, there is no principal objection to having international mediation. The fact that we say we don't see a need for it is an opinion which we hold. We certainly don't see the need for international mediation. But that's neither here nor there. The fact of the matter is we entered into an agreement so whether we see the need for it or not the agreement has to be implemented and if the IFP can point out, merely to say to us that they are unhappy as far as the 1996 constitution is concerned, there are provisions we are unhappy about and we would like to change them in the following ways, and we would be able to say, "Well we see no problem, let's make those amendments", then we don't need international mediation. If one or both of the other parties say that we cannot agree to this then you have a dispute that is then subject to mediation. It's a very simple procedure that we're asking for. Unless we go through that it doesn't make any sense whatever to have mediation. There has got to be some logic to what we do. It's got to be somewhat rational in this whole thing.
. As to the possibility of escalating conflict in the province of KwaZulu/Natal, I think there is every possibility that there would be escalating conflict. The conflict is already escalating and there is a very high level of political violence going on there presently so I don't think it's a question of predicting whether or not there would be violence in the lead up to the elections, there is already violence. As to what happens in the next few months it's something that's very difficult to predict and that's simply because it's not easy to predict how the IFP would behave and react. It could well be that international mediation takes place or doesn't take place and the IFP says, "We're very happy and we will go ahead with the local government elections."
MVM. It would certainly be a problem if they permanently withdraw from the Constitutional Assembly. Firstly I don't think that they will withdraw from the Constitutional Assembly but even if they do so the fact of the matter is that they are a 10% factor in the Constitutional Assembly so they will not in any way make much difference. In fact we would do much better if the IFP and everybody else are involved in the constitution and we adopt the constitution by consensus. But there would be nothing illegitimate about a constitution if the IFP withdraws and they certainly won't represent the entire province. They may well represent the majority of the people in the province but at the end of the day it is a national constitution and knowing the IFP and its behaviour I think that if we allow other sides to say that the constitution will only be legitimate if the IFP is part of the consensus then we will never ever have a new constitution to run affairs.
. As far as the Truth Commission is concerned I think that it's really about truth and reconciliation. Certainly if people who are in high positions in government, political leaders in government, if it is that they have been involved in human rights violations then as far as I am concerned it would be unacceptable for them to continue to serve in government. I don't think they should.
. Sorry, let me rush off.
POM. OK.