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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
03 Apr 1996: Felgate, Walter
POM. First, Mr Felgate, the last time I interviewed you was in 1993 after the date for the elections had been set but before the elections were held. If you had to review rather quickly the period since, the state of affairs in KwaZulu/Natal prior to the elections and the state of affairs in KwaZulu/Natal in the almost two years since the election how would you compare and contrast them?
WF. That's a vast undertaking. In the period preceding elections there was an enormous amount of tension in the air. At that point in time we were facing an escalation of violence, we were facing a great deal of uncertainly, we were facing the return of uMkhonto units from abroad. There was a great deal of dissatisfaction with the whole security process, people were taking the law into their own hands, vigilante groups were being formed and the uncertainty of whether or not this province was going to participate in the general election added of course to tensions. In those circumstances there was the emergence of a radicalised political element both in the camps of the IFP and in the camps of the ANC. There was uncertainly whether the government would then employ its emergency measures, there was massive deployment of troops around the countryside. The whole country was under tension at the time. Then there was the meeting between Buthelezi and Mandela in an ANC/IFP get together and that was in January 1994 and at that meeting there was discussion about how to move out of this uncertainty, how to move forward, how to bring things down to earth and out of that meeting there arose the notion of submitting our constitutional differences, which were keeping us out of running for the elections themselves, to international mediation. Once that had been accepted by both parties, Mandela accepted it there and then, Buthelezi committed himself to it, it created a platform or a programme of mainline political activity which gave people things to do and that in itself was a settling event.
. Then there were the negotiations to establish the process of international mediation and of course then there were the heated discussions about what the terms of reference of that international mediation would be. It was a condition of the mediators, or some of them at least, that unless there was consensus on the terms of reference and agenda they would not be party to it. The difficulty is that if you have got deep-rooted political differences and constitutional differences the view of them and what the issues are will be different to different parties. The ANC completely rejected our views of why we were out of the process. We rejected their views of why we should be in the process. So we ultimately said to each other, ANC and ourselves, we can have a common approach but in the end we will have to live with two separate sets of terms of reference and international mediators will have to understand that there may not have been the need for international mediation at all if one could sit down together and thrash out what the common areas of concern are, why there is the problem, it's disputes about why there should be a problem which is the most divisive dispute. Those are the disputes which had to go to international mediation. We then agreed along the lines and we sent out documentation to all the international mediators along those lines and the return was that they still required a common set of terms of reference, so there was a last minute attempt to get out a common set of terms of reference. This finally was achieved at a meeting in which Thabo Mbeki's presence made it possible because he saw the need for reaching some kind of common ground and he was co-operative in doing so. We saw the need for it. So we evolved on that Sunday a common terms of reference. When it was subsequently put to ANC structures the next day Ramaphosa tore it up and threw it in the wastepaper basket. So then there was another attempt to get out a common set of terms of reference and mediators had in fact already arrived, then mediators sat down and their decision was that they could not mediate.
POM. This was Lord Carrington and Henry Kissinger?
WF. Kissinger et al. There were no prospects of success for mediation in those circumstances and then out of that crisis there was the final meeting between Buthelezi and Mandela at Skukuza Game Reserve which drew up the Peace & Reconciliation document. In that document it was agreed that certain last minute amendments would be brought to the constitution, the interim constitution, dominantly around securing the role of the Zulu monarchy in the elections and also the preservation of tribal authority structures as being part of the democratic structures of the future. So those amendments were brought to the constitution and the terms of reference and all the outstanding issues contained in those terms of reference were then to be left to international mediation and there was a solemn agreement signed by De Klerk and Mandela and Buthelezi that international mediation would resume straight after elections.
POM. Now the ANC keeps saying, when this issue of international mediation is raised, what issues are the IFP talking about?
WF. That's rhetoric because they know the issues are spelt out in the documentation in the Agreement of Peace & Reconciliation signed at Skukuza. It's there in black and white. We, in December, had produced a document which became known as the yellow paper in which we had reduced all our demands down to the bare minimum demands as a pre-condition for our involvement in the election process. That document was presented to both the ANC and the National Party and to parliament. That document is very concise and specifies the issues. So both in terms of that document which was a negotiating document and the contents of the agreement itself, the Agreement of Peace & Reconciliation, there is a very clear definition of issues which are outstanding issues and those are the issues plain and simple. The ANC's contention that some of those issues have been handled by the Constitutional Assembly process and that therefore we need to revisit them and redefine what the issues really are, to me amounts to no-one making political statements because they do not want international mediation and they don't see the need for international mediation and they see the CA process as overtaking those needs.
POM. Why do you think they are so adamant on opposing international mediation? Why do you think Mandela in particular, the great reconciler, the person who bends over backwards to accommodate every constituency in the country, on this one issue appears to be unmovable?
WF. I think it's quite easy to understand. Mandela has no fear from the right wing white parties any more and therefore he can negotiate with them, he can talk with them, he can make concessions to them. There is no subsequent threat to his power base, there are no politics of any note which will impinge on the ANC and its programmes. When it comes to the IFP, whatever views there are of the IFP, it's the only alternative black grassroots party in the country. The IFP has got an unshakeable stronghold in KwaZulu/Natal. The IFP is here to stay. The IFP from an ANC point of view has to be destroyed as opposition. The growth of the IFP is the growth of opposition which the ANC must take seriously.
POM. You would hardly look at the IFP's performance in local elections outside of KwaZulu/Natal as being indicative of growth or even of being a viable opposition to the ANC.
WF. The November election results at local government level quite clearly show the IFP to be irrelevant in Gauteng and Mpumalanga. That's one statement. Another statement is the viability of the IFP in this province finally having achieved a constitutional settlement and forcing the ANC into a constitutional settlement is another thing. The whole question of regionalisation, we have taken regionalisation a huge step forward. Regionalisation is a threat to the ANC. As one ANC premier put it, the IFP is shaking that tree, he is going to pick up the apples. So the feeling and the call for more powers to provinces is going to become real politics because the IFP has actually succeeded in doing something here no other province has tried to do. So there is going to be a changing in the nature of the politics. We already have got a very strong movement away, from Contrelesa, from a straight ANC support group to a group supporting many of the issues we are tackling as IFP and traditional leaders in this province relating to the question of ground, relating to the whole of the Amakhosi, the chiefs in tribal structures, the authority systems and what they need. So in broader picture politics the IFP is a very unwelcome intervening factor in the unfolding plans of the ANC.
POM. Let me just back up a bit to where you talked about the IFP forced the ANC into a constitutional settlement. Many political observers would take the very opposite point of view. They would say that the ANC ultimately forced the IFP to accept a provincial constitution that involved major concessions on the part of the IFP. Maybe if I read you some statements or comments made by various commentators you could comment on their comments as to their accuracy, number one, and as to their substance because I have found, like everybody else, that what you read in the newspapers here isn't exactly what happens or what was recorded or what was said. I'll begin with a statement, this is from Business Day, and it talks about the all-night negotiations: "The legislature bells rang at 5.15 a.m. on Friday to signal a historic breakthrough by the IFP and the ANC." And then it says, "The NP came along with the demand that it would not give its support to any agreement until its demand on power sharing was accommodated and that the NP was then satisfied by an IFP undertaking that a constitutional commission would negotiate its demand for continuation of the government of provincial unity beyond 1997." . Now, is that correct?
WF. In part. The whole process in the early hours of that morning nearly floundered because the National Party wanted language which would mean a commitment to the principle of government of national unity beyond 1999 and they wanted a process of determining what that form of government of national unity would be before 1999 and they wanted ongoing negotiations about those. That we rejected outright and the constitution could well have floundered on that. They came subsequently with an amended language, amended language merely says that by negotiation the matter can be picked up at a later stage. We've got no problem with that.
POM. So there has been no commitment given by the IFP to the continuation of power sharing after 1999?
WF. None whatsoever. So there's no commitment and the National Party backed away from that and if you look at the language now in the draft constitution, before the Constitutional Court, you will find that it's not there.
POM. The second thing it says here: "Of the constitution's fourteen chapters, nine chapters, or parts of them, cannot be implemented. The latter include fundamental principles, bill of rights, powers and functions, the Constitutional Court, the monarchy, traditional authorities and related matters, security and police, local government, other authorities and final and transitional arrangements." Is that correct?
WF. It's correct insofar as the words are correct but the circumstances in which one must review the meaning of those words is somewhat complex. Firstly, the chapter on fundamental principles and the bill of rights has been suspended. It has remained suspended for six months and will come into full force and effect if 40% of the legislature vote to remove them from the constitution.
POM. It will come into effect unless 40% vote?
WF. Yes. So if nothing happens automatically they come into full play in six months time and if there is going to be an attempt to force them out during that six months you will have to have a 40% vote against them. The National Party and the IFP alone can contain that. We can block a 40% vote. The DP want those chapters in. They are not quarrelling with those. The PAC, the minority front want those chapters in. So there are no prospects whatsoever of those chapters not coming into full force and effect in the six month period. Now the question of the Constitutional Court, for example, it was part of our sunrise clause, it would not have come into effect in any event until the new national constitution was so worded or amended that that became possible. So there is no change in that. The chapter on, for example, local government, there are only two key clauses in that chapter, the rest of the chapter is there, it will come into full force and effect and we will be able to go ahead quite comfortably.
POM. Which aspects of local government are you talking about?
WF. The two aspects are confined to, in the first place, the notion in the constitution in which local tribal structures are regarded by the constitution as primary local government structures equivalent to municipalities, that's the language. That is suspended. The status of a tribal authority has been suspended. The other clause that has been suspended is the clause which says that wherever a tribal authority has an overlapping boundary with a local government structure the chief in that tribal authority will be an ex-officio member of the council or whatever it is, which means inter alia that the chiefs will be ex-officio members of all regional councils. That ex-officio status clause is suspended. Neither of those worry me at all. Right now in the current elections the ANC have lodged an objection to that very principle of the chiefs being ex-officio members of regional councils which will be elected on 29th May, next month. It's been to the Electoral Court and the Electoral Court says it's a constitutional issue, the election is going ahead. There have now been two proclamations instead of one proclamation and in terms of the second proclamation after the elections the Minister of Local Government will nominate the Amakhosi by name for each regional council structure. That action the ANC will take to court, to the Constitutional Court. The ANC are going to maintain that action is unconstitutional. The matter will be decided in that Constitutional Court ruling and that Constitutional Court could also be a ruling which would be directly applicable to the issue in the constitution itself on that suspended clause. We've got no doubt in our minds whatsoever that the action will be upheld as constitutional, the interim constitution is very clear on this. The State President's proclamation about the recognition of the Amakhosi in itself as a proclamation says the Amakhosi will be ex-officio members of regional councils. That's a procedure we've got to go through and the ANC are attempting to test an interpretation of the constitution in the Constitutional Court. So in the end we will end up with a process in which on local government issues that clause will be returned to full operation and purely on technical grounds the clauses which have been suspended leave other clauses in the constitution which will be fully operative and in any event local government structures, and for that we have elections, would be left to legislation. So they can proceed with legislation tomorrow and we can continue to go ahead on local government structural issues. So that's not a great concern.
. The question of the chapter on the constitutional monarchy doesn't concern me greatly either. Firstly there is sufficient left intact in the constitution to secure the monarchy as at least a quasi-type constitutional monarch and if you look at the actual realities of it there are already laws in the province which have the effect in law which the ANC are disputing in the constitution. So they can't get rid of the core issue. All they can say is it cannot be in the constitution if they succeed, but it is already in law. When it comes down to all the other power, commissions, there were long disputes both at the World Trade Centre about what one included in a constitution on these matters and what one left to legislation in these matters. The decision of the IFP and the fight we had was that all the commissions and other authorities for which we make provision are actually authorities and structures and provisions which empower opposition parties to curtail the executive. The executive does not need those powers, those structures. A ruling party does not need them. They are grist to opposition mill. So firstly them being taken out of the constitution, even if they remain out of the constitution, adds to the security of tenure of the ruling party, which is the IFP. Secondly, in many, many constitutions around the world the constitution has far less in it and far more left to legislation. So any of those commissions could be brought into being by legislation. They don't have to be in as a constitutional reality. The constitution empowers the premier to establish a commission. There is a Commissions Act. So to me the premier can establish all those commissions any time he so wishes to establish them. So it's not as debilitating or as stripping or limiting of the constitution as would first meet the eye. The one major concession which finally resulted in the breakthrough is a concession on our part and is actually one of the few concessions to the ANC. All the concessions we're talking about were concessions reached in agreements with minority parties so that we could have a two thirds majority support without the ANC. We didn't give them the concessions. Concessions were agreed to prior to the final showdown.
POM. You didn't give 'them', you mean the ...?
WF. The ANC.
POM. You didn't give the ANC the concessions.
WF. No. If you trace those concessions one by one, they weren't even party to them. Many of the concessions we had to make were made to gather around us a two thirds majority support to take on a constitution without the ANC if necessary and we needn't go to each one of them, I can date them and I can show you documents where they were actually made. The point I want to make is that the ANC started off nationally saying that there shall be no constitution drawn up in any province until after the new constitution had been established. That's the ANC line for all provinces. That's the instruction to all the seven premiers that they control. If you read the document of the KwaZulu/Natal ANC in which they drew up a provincial document, a provincial constitution, if you look at that provincial constitution it expires on the day the new constitution is actually adopted.
POM. That's the new national constitution?
WF. Yes. So the ANC did not want a constitution but when we were faced with a drive for a constitution which was gathering momentum they could not afford not to be participant in it and finally on the Thursday morning the ANC boycotted attendance at the Constitutional Committee which was finalising the constitution and remained outside of proceedings and during Thursday we finally thrashed out the two thirds majority support for the wording of the constitution from all the other parties and it was only when we reached that point that we could in fact have gone back to parliament the next day as IFP and minority parties and said we have got a constitution, that the ANC came to us and said, look let's talk. So we then agreed to convene, I think it was about three in the afternoon, as the Constitutional Committee, the ANC then formally returned to the Constitutional Committee, they asked for the documents our caucusing with the other parties had produced. We gave them our draft constitution and they asked to adjourn so they could study the document. They studied the document until about seven that night. They then asked us to meet with them, IFP and ANC in a bilateral which we did. They then made a proposal to us about a way forward which I, as chief negotiator, rejected.
POM. The proposal was?
WF. The proposal was along the lines of keeping certain key core chapters intact in the constitution, taking some chapters out of the constitution and putting them in a separate box which would be dealt with by a constitutional commission yet to be formed. A third set of provisions would be routed to the Constitutional Assembly and from the Constitutional Assembly to the Constitutional Court for pronouncement on their constitutionality, leaving behind a skeleton constitution which would have been not even an apology for a constitution. And we said no, the constitution is integrated whole and we were given constitutional advice. If you have severed parts of a constitution and you put them in a resolution or you put them in a schedule they would not be then judged by the Constitutional Court as part of that which had to be certified in terms of the interim constitution. So the fragmentation of the constitution that the ANC were proposing leaving uncontested areas which are minimal and divided the contested areas up into two different procedural groups, we rejected entirely. So we were back to square one. The National Party at that juncture came forward with an alternative. That alternative was basically a re-write of the ANC's proposal but a re-write which kept the integrity of the constitution as a whole despite the suspension of some of its clauses for further consideration and finalisation. That we accepted. The process of moving towards consensus then left us with the need - we had reached agreement again with the National Party and that proposal which originally emanated from the NP and which we subsequently amended to make it acceptable to us had then to be saleable to the ANC. Now a couple of further amendments were made to that proposal and the final concession that I made to the ANC was to include in our constitution the language which says that the provisions of this constitution shall not be inconsistent with the provisions of the national constitution. If one adopted that language there is a huge constitutional and legal difference to adopting the language that provisions in this constitution 'shall be consistent with'. 'Shall not be inconsistent with' is substantially different to 'shall be consistent with'. 'Not being inconsistent with' means that in part you can have something which the national constitution does not have. So it is a very much more flexible proposal and we added the rider to it 'provided that there be no diminution of the powers to the province contained in this constitution.'
POM. Contained in the provincial?
WF. The new provincial constitution.
POM. When the Business Day reports that, it says: "Felgate undertook that all provisions found to be inconsistent with the constitution negotiated at the Constitutional Assembly would have no force or effect. This covers the controversial sunrise clauses which powers the national constitution should grant KwaZulu/Natal." That's incorrect?
WF. That language had been in our constitution for months already. It's a fact of constitutional law that you've got to meet the requirements of the interim constitution and the principles. But we're now going a stage further. We're referring to inconsistency between the provisions of this new provincial constitution with the new South African constitution. So it's another matter altogether and there's a lot of confusion between the two. So we're looking at another dimension altogether. We have got the option of now going to the Constitutional Court and contesting the constitutionality of that concession we made to the ANC.
POM. Of testing the constitutionality of the concession you made to the ANC?
WF. To the ANC. It may well have been an attempt to bring the ANC on board but ultimately it failed a test of constitutionality as a mechanism of doing so. It's a complex situation. We are now preparing for the whole process of adjudication in the Constitutional Court on the certification issue. We have got teams of lawyers preparing argument for our constitution. The ANC are going to oppose it and until a number of issues are cleared up by the Constitutional Court itself a lot of thinking and talking is just purely speculative.
POM. I just throw out to you what some of the media said. It says : "It is beyond doubt that the IFP capitulated. The ANC proposed about three weeks ago", (this was written on 18th March), "that such a constitution" (that's the one that was passed) "be adopted but the IFP rejected it at the time."
WF. I've gone to pains to say that that proposal of the ANC was first made on 15th February at the Constitutional Committee in Pietermaritzburg. We rejected it out of hand again and again the previous week, prior to the final constitution, Pravin Gordhan, I, Danie Schutte, sat in this room overnight, the whole weekend, the whole Sunday, the whole of Saturday, in the early hours of the morning, we tried again on Monday but the ANC would not move away from a fragmented constitution. We rejected it. And the day that finally we came together, on that very day they again presented a proposal with a fragmented constitution and we rejected it. We never, ever accepted their proposal.
POM. So this is a misunderstanding on the part of the reporter?
WF. It was a Schutte drawn up NP document which finally brought them together. And the ANC then knew that we would have a two thirds majority without them because they were the only ones left out, they then came in.
POM. Again when this reporter, Farouk Chothia, says that : "In reality KwaZulu/Natal has only the constitution's skeleton, it will be given flesh and blood in phases." That's incorrect too?
WF. In a constitution, a lot in that constitution could have been left to legislation. It's a very detailed constitution. It's abnormal in its detail so to regard it in that way really it is not quite correct.
POM. So another statement. You, if I heard you correctly, said that you did have the two thirds majority you wanted but you didn't have the ANC on board and that you wanted to bring the ANC on board so that the constitution was reached by consensus and not without the ANC being part of that consensus. But it says here : "The NP, DP, PAC and minority front were largely responsible for the IFP/ANC deal. They warned the IFP that they would hold back their votes in the absence of a settlement with the ANC." Is that correct?
WF. No they didn't take that position ever. The position they did take, and they took it strongly, was that if the IFP or the ANC were being obstructive in the achievement of a settlement then they would withdraw, they would not be party to it. But there was nothing obstructive and every party could see that by that stage the IFP had made major concessions. We were doing everything in our power to bring the ANC aboard. We weren't blocking the ANC and therefore they wouldn't be siding with a party that was excluding the ANC. That enabled them to vote for us. If I was being difficult specifically to exclude the ANC they would not have voted with us. We had a two thirds majority by agreement in a meeting on Thursday afternoon, at lunch time.
POM. And you could have gone into parliament and had the constitution passed. Now why wasn't that reported by the media?
WF. Because one didn't at that stage go round proclaiming to the ANC and to the world, "We've got our two thirds majority, now you'd better watch it." One was still looking for and seeking a conclusive settlement. It wasn't a public document, it wasn't a public position yet.
POM. So again, this is from the Sunday Times, it says : "Inkatha's wish list of national powers which it wants afforded to the province has been included in the constitution but this is balanced by a clause which stipulates that the provincial constitution has to be consistent with the national one."
WF. Provided it does not leave us with less powers.
POM. Than you have now?
WF. No, than we will have under this constitution.
POM. Than you will have under the new constitution?
WF. Yes, under our new constitution.
POM. That's like a key proviso.
WF. It's a key proviso but nobody's looking at it.
POM. And no-one has reported it or no-one has commented on it?
WF. No. I can give you the constitution. It's there.
POM. OK, this is from the Sunday Independent of March 17th by Sam Sole. It starts off by saying : "After the drawn out roaring of the Inkatha lion, the process of negotiation has left KwaZulu/Natal with a pussy cat constitution in which the only real winner is the tiger of Chatsworth. In the end the Inkatha Freedom Party was simply outnumbered and out-negotiated with a majority of only one in the 81 seat provincial parliament. The hard-line route the party chose after it removed Arthur Konigkramer as chairman of the Constitutional Committee last year appears to have been the wrong strategy. The IFP played chicken. In the end it lost its nerve and buckled. The result is that almost every contentious clause has been suspended pending further negotiation or pending the outcome of negotiations on the new national constitution. This leaves a provincial constitution that does little more than establish and solidify the degree of provincial autonomy provided for by the interim constitution. Though the document provides little basis for the IFP's ambition for greater provincial powers it stands as a bulwark against ANC and National Party inclinations to centralise power in the final constitution. No-one compromised more than the IFP which had to leave behind (i) the power given to the House of Traditional Leaders to remove chiefs and the King, (ii) the special powers granted to traditional leaders in local government, (iii) the Provincial Constitutional Court, (iv) exclusive provincial control of policing, and (v) special powers for the province, and most crucially it was forced to include a clause granting an absolute override to the new constitution." Again, is that a substantial misreading of what the constitution is all about?
WF. That's typical Sam. He's vitriolic in his condemnation of what we are doing. It's par for the course for Sam Sole. I like the guy but he's really - If you take one of those statements after one, and each one of those statements is just pure crap. Pure crap, absolutely. I've got the documentation. We can go into each one of them. It's writing some kind of political commentary in popular jargon type of thing, but it doesn't have any constitutional comment at all.
POM. So when many commentators say that the person who must have had the last smile of all this is Arthur Konigkramer, that what resulted was a very moderate constitution and not the more hard-line constitution originally envisaged by yourself and Mario Ambrosini, no doubt ...
WF. In the first place we have got our statement of beliefs, our fundamental principles. We've got our bill of rights. We've got our Constitutional Court. We've got the sunset provisions. We've got our police. All of those Konigkramer would have put in a schedule in September last year and we would have had none of them. So we fought for and succeeded in retaining in the constitution the issues which he had agreed would be removed from the constitution and put into a schedule and severed from the constitution in September last year. Secondly, the drafting of the remaining sections of the constitution have been so crafted that the legislative programme of the province can now be enormously adventuresome, bold, innovative and governance under this new constitution will be a real challenge to anybody who really wants to govern properly. The provisions are there. Provided the Constitutional Court doesn't strike down some key issues, and the key issue really which nobody has written about is interpretation of clause 160(2) and (3) of the interim constitution in which provinces adopting their own constitution can establish executive structures and procedures different to that in the interim constitution. So no conformity is required. Now what are executive structures is the key issue. Cabinet is obviously an executive structure. The Civil Service Commission is nothing other than an executive structure. So what is an executive structure, what is not an executive structure is now the issue. We have interpreted the interim constitution as saying that we are entitled to have a constitution with a different executive structure, with different procedures, we can have a constitution in which we have got our own Civil Service Commission, we have a constitution in which we have got our own electoral law and all these now are hotly disputed because if we are correct in those the core of this constitution is exactly what we've been fighting for.
POM. Now does the ANC understand that?
WF. They understand that and they are taking those issues to the Constitutional Court. So the dispute is going to be about those issues, that's where the real Constitutional Court fight is going to be because once you've got an independent executive and once you've got independence of the structures you don't have to conform to anything, and once you've got your own Civil Service Commission then you can set up your whole KwaZulu/Natal administration, all your departments, you can restructure government, and then you start enacting the laws to cover the areas which were excluded from the constitution but their exclusion doesn't mean to say that what we've done by constitutional mechanism cannot be done by the mechanism of a law.
POM. So the ANC signed on, agreed to a constitution, large portions of which they are going to take to the Constitutional Court to test its constitutionality?
WF. That's right.
POM. That's a funny kind of consensus.
WF. This is another matter of dispute. Jacob Zuma as leader of the ANC in the House on the previous day said that if we achieved consensus then the ANC would not take it to Constitutional Court. They are now saying they can take it to the Constitutional Court because we did not achieve consensus on their proposal. But that's politics. We'll wait and see.
POM. Taking the politics of this, you were anxious, very anxious to have your provincial constitution in place, passed, before the May 8th or 9th deadline for the national constitution. Why were you so anxious to have your constitution in place before the national constitution was finalised?
WF. Because of the process of referral to the Constitutional Court by the Constitutional Assembly on crucial issues, the constitution produced by the Constitutional Assembly will have been in part already vetted by the Constitutional Court. The process of certifying, the Constitutional Court Assembly, is going to be a short process. The day that the new national constitution is certified and comes into operation the interim constitution falls away and is of no force and effect whatsoever anywhere. The advantages of provincial asymmetry which comes from provisions in the interim constitution will not be found in the new South African constitution. They were establishing a uniformity across all provinces. So the adjudication process and the certification process of our constitution has to take place before the interim constitution falls away and the Constitutional Court is transformed into its new mould by the national constitution. We worked back and found that we are looking, from the court itself, anticipating a six-week turnabout time from submission to a finding provided there are no disputes. If there is demand for leading evidence and calling witnesses it will prolong the process. So you take that six weeks and if you take the probability that the Constitutional Court will not reject the constitution outright but will refer the constitution back to the province drawing attention to unacceptable elements in it, will give you time to remedy those elements and re-submit. That will be the procedure. So you wanted twelve weeks, twelve weeks from the end of May, you have a deadline beyond which you are into red hot danger time time-wise. So we had to reach a constitution by that time for that purpose, otherwise we would have run out of certification time.
POM. So if your constitution is found not to be inconsistent with any of the principles of the new constitution do the powers that your constitution have then become part of the powers that any province may have or are they unique to KwaZulu/Natal?
WF. They are unique to KwaZulu/Natal.
POM. It would be in the ANC's interest to delay in this case, not to have you have pass a constitution, a provincial constitution before time for certification ran out?
WF. It's a difficult question because it's a complex issue. We are having local government elections on 29th May and it's not a political statement but the IFP are going to come in with resounding victories across the board in this province. Now if you are a party and you start off with no local government power bases you then face the next provincial election with a very much weakened position, the incumbent party is always stronger. The ANC in order to get into this political ball game and to compete here effectively will have to accept the dominance of the constitution as it's now emerging and it will play ball within it. It will play the game according to the rules of this province. So a continued fight against asymmetry is going to be detrimental to ANC gains on the ground at its constituency level. Already this province has got, for the last two years, has attracted significantly more new foreign investment than any other province in the country. We've got enormous potential. Two ports, we've got an abundance of water, we've got labour, we've got land, we've got all the infrastructure with railways. We're ready for expansion. The Northern Province is not. The Eastern Cape is not. Northern Cape is not. So it's a province of dynamic growth ahead. The ANC will just have to find an idiom of being in this province and participating in its politics in such a way that they can compete here. They were totally sure that they would walk the last elections. They didn't. Everybody knows the final adjustments that Kriegler and the TEC made were detrimental to the IFP. But be that as it may, we will win every single regional council election in the whole of this province. We may share seats, equal seats, in Durban Metro. We may get a few less than the ANC in Pietermaritzburg, but across the province the IFP is going to be resoundingly in charge of regional and local government and that puts you in a very strong political position. So the ANC have got to take serious stock of this reality and they have got to decide how they play the game. If it's a continued attempt to finally crush the IFP out of existence, which has been part of their strategy for a decade and a half, they are just going to be shooting themselves in the foot every second day.
POM. Mr Mandela himself, he recently is on record as saying that the only way to stop the violence in KwaZulu/Natal is for the ANC to control the province. Just a hardball political statement; is it the kind of statement you expect from the President of the country who talks about reconciliation as being the legacy he wants to leave behind?
WF. The President talks about reconciliation but when it comes down to KwaZulu/Natal it's war against the IFP.
WF. I repeat again, the IFP is the only party in the province, in the country which has any kind of grassroots base support, mass support. As we move towards the 1999 elections the National Party must fall away, it's got no real roots anywhere any more. The DP will become irrelevant. History has shown that the PAC has lost out to the ANC, the revival of the PAC to any mass support is not going to be possible, leaving only two parties, the IFP and the ANC finally as government and opposition. So the weakening of the IFP is a total preoccupation of the ANC.
POM. Do you find their actions with regard to the IFP to be reactive actions that in many ways you dictate the kinds of actions they take because they are taken with the objective of crushing you?
WF. You take the march on Shell House last week. It's absolute nonsense to argue that traditional weapons, if they were carried, would have killed people on the way to or from Shell House. It's absolute nonsense. Yet a proclamation was issued barring the carrying of traditional weapons. It was action against the IFP, it was not action for the sake of people's lives. There was no threat to life in it whatsoever. We know that and the event proved it. There was an enormous attempt made to stop that process. In the actual event the police did not disarm the IFP and television footage shows that 30,000 odd people did march on Shell House, we did lay wreaths. It was a significant political event which Mandela did not want to happen. The intervention of Mandela in the matter of the King of the Zulus, he is going to burn his fingers enormously sore there. His attempt to divide the Zulu people between Buthelezi and the King and produce a fall-out support system for the ANC is not going to happen. There are no prospects whatsoever of dividing the Amakhosi, the Amakhosi are not divided between Buthelezi and the King. There are a couple of people from the royal household around the King but the House of Traditional Leaders when it meets really is reflective of the Amakhosi in the area and when you have meeting of all Amakhosi they are unanimous in the rejection of what the King is doing and what Mandela is doing with the King.
. So Mandela is making one of the most unlikely of mistakes as a politician, you don't ever attack an institution as a politician. That's the height of stupidity. You can attack a person or a body or a programme or event but when a politician turns to attack an institution he's going to be mangled by it because politicians can't destroy institutions. Now you're attacking the Amakhosi as an institution, you're trying to bring him under your pay roll, you're saying to the Amakhosi they cannot sit as members of parliament or members of a provincial parliament or member of local government, you are consolidating that constituency in making those provisions. It's not going to work and between the Amakhosi they have got such clout on the ground that it will give rise to very strong politics if necessary. There's a lack of understanding of that by Mandela.
POM. What is the nature of the continuing dispute between the King and Dr Buthelezi?
WF. The King has got personality problems, he's got problems in the way he perceives himself, he's got thoughts of personal grandeur, he does not want to be a constitutional monarch, he says he does not want to be an executive monarch but he wants effective control over a lot of issues. He recently moved to try and establish seven departments under the King's Council and to have them manned, offices built for them, staffed and headed by personnel of Director General status. These are all an indication of somebody who wants power. A constitutional monarch can do no wrong whatsoever and a constitutional monarch can never be beheaded because whatever the constitutional monarch does is counter-signed by a minister and it's within the framework of Cabinet decisions. That's what he does not want.
POM. The constitution does provide for him?
WF. Yes but that's what the King is rejecting.
POM. You, interestingly, and I would like to know what was your strategic intent, on 24th January you re-submitted proposals that would make (i) Zwelithini the monarch of the whole province and (ii) that would give him the prerogative of naming the premier, in effect you would be giving him executive power. Why would you do that under circumstances where there was this hostility and disagreement between himself and Chief Buthelezi?
WF. The issues were very distinct, very different. In negotiations, if you look back at the draft constitution that we handed in to the Constitutional Committee in September last year there was provision for a full constitutional monarchy with all those parliamentary roles, and those not real roles, he hasn't got the right to appoint a prime minister. He is party to the nomination of prime minister, it's a procedure role he plays in the same way as the Queen calls for the leader of the opposition and tells the leader of the largest opposition to form a Cabinet in Britain and you get a Cabinet and the Queen doesn't appoint a Cabinet. It's a procedural process which goes with constitutional monarchy. If you look at the documentation of September last year by the IFP you would find the provisions there. In order to achieve consensus between the IFP, the NP and DP in particular, the constitutional monarchy was for them a gravely difficult issue. So we had in the end to adopt an alternative approach. If you looked at our draft constitution handed in in November to the Constitutional Committee you will find that we were making provisions to secure the integrity of the King and the institutions of the monarchy, to entrench the authority of the Amakhosi, we secure tribal and traditional law and make all the provision necessary for the preservation of traditional society in a modern democracy, but we do not do so within a framework of a constitutional monarchy. We do not adopt constitutional monarchy per se because there are other ways of securing the role of the King, the tribal and traditional law and the role of the Amakhosi which we then proposed. Then as a result of Mandela's intervention and his first call for an imbizo, a Zulu imbizo, as a result of a meeting between Buthelezi and Mandela and Jacob Zuma a whole programme began unfolding. In the context of that programme there were moves by other parties to actually support a constitutional monarchy as such and at a retreat, a workshop by the Provincial Constitutional Committee at Ferndale, a sub-committee of the Constitutional Committee was formed to deal with the chapter on constitutional monarchy. It then became possible for the first time for us to re-introduce our notion of a constitutional monarchy and move towards consensus in a negotiation process, which we did. So we reintroduced the notion of constitutional monarchy once that sub-committee has been established and itself began working towards a definition of constitutional monarchy. So that is the way in which those matters changed.
POM. But now under the constitution he is the constitutional monarch of KwaZulu/Natal, not just of the Zulus.
WF. We've never considered anything else. We've never, ever considered anything else.
POM. Then just to back up, will this imbizo ever take place?
WF. That depends on the Amakhosi. You can't have an imbizo, the King can't call an imbizo on his own, Buthelezi can't, Mandela can't. A pre-meeting was held with the Amakhosi ten days, two weeks ago. They told Mandela there are some pre-conditions which have to be met and ironed out before it can happen. The King is now calling for an imbizo despite the fact that there has been at least a delay put on it by the Amakhosi. It may or may not take place now, it's a matter of protocol, it's a matter of who actually ends up being able to make what decisions within the protocol surrounding the King and the Amakhosi of the province.
POM. Do you see still fundamental differences between yourself and, I'm talking about the IFP, and the ANC on the outstanding constitutional issues, on the manner in which they are supposed to be resolved, on what will constitute inconsistency with the new constitution and what will not? Is there a lot of debate and argument ahead?
WF. It's unbridgeable gaps at the moment. We don't know how we're going to go. We've got a draft constitution, got to adopt the constitution now, it will be certified with amendments, without amendments, there will be a new political dispensation and we will then set about moving towards further amending the constitution until it is more fully what we want it to be. So the constitution making process is going to be one both at the national level and at the provincial level in which there will be continuation of amendments. The finalisation of a national constitution will continue between now and 1999. Finalisation of this constitution will continue to the year 1999. That's quite clear.
POM. Where do you see the IFP playing a role in the formulation of the national constitution? I know Dr Buthelezi has said that he will, I've got his exact words, "accept the national constitution". Does acceptance mean endorsement?
WF. That's a gross distortion of what he said, he didn't say anything like that. What he said was that if you've got a new national constitution it's the only constitution we've got. He said for forty years under the NP constitution, because it was the only constitution I had, it's not accepting the constitution, it's a recognition of a de facto position.
POM. What are the ramifications of that without a way being found to bring you into the process or do you envisage a way into the process that doesn't involve international mediation, i.e. using parliament to make amendments, to propose amendments to whatever constitution the Constituent Assembly comes up with?
WF. Some issues one must talk about at the time because to foreshadow events which may or may not happen by making statements now about strategy options, if so-and-so in the future and if then so-and-so, is not really wise and it's not normally expected of someone. When we know what the final constitution contains, when we know what the position actually is, when we have been able to ascertain the extent to which that constitution cannot be implemented without us, then we will know what our political options are. The provisions of the national constitution are in many cases enabling provisions and have to be followed up with legislation to implement them and when it comes to implementation of the sections of the national constitution dealing with local government and with provincial government we will have to enact those laws as province and those local government authorities. One just needs to look and see to what extent that process can take place without us.
POM. But you put your finger on a kind of peculiar, again, oxymoron so to speak. You say you and the ANC and all the parties have reached agreement on a provincial constitution while at the same time there are unbridgeable gaps.
WF. They dispute some elements in the constitution. If their disputes rest on a false interpretation of the Constitutional Court it doesn't mean to say that politically they will then accept the reality of those constitutions. If they oppose a constitution and they think that they can win in their opposition by calling on a constitutional procedure to defeat them, if the constitutional procedure fails to defeat them they can't then expect us to turn down a like constitution.
POM. Do disputes or continuing disputes over either the content or interpretation of the provincial constitution make for further grounds for increased violence?
WF. It depends on the way parties tackle it. The minute you've got a constitutional dispensation, a new constitutional dispensation, you have got the mechanisms, you've got the structures with which you can normalise political disputes. We are disputing now with each other about what this province should or should not have. There are no mechanisms to normalise that dispute, it's an open street matter. You take it to the people and you air it there. So the coming into operation of the new constitution will provide mechanisms for the normalisation of the differences and disputes about things and if parties are committed to normalising politics and to eliminate violence, that is their first option. But that's not the only option a party can adopt. One could ignore that route of normalising opposition and normalising politics and you can go to the streets with mass action outside of all political and legal provisions.
POM. You talked about the IFP sweeping the local elections on 29th May, do you think that will have a stabilising impact on the province?
WF. It will vary from place to place. Generally it will have a stabilising impact because part of the agitation, political agitation, is a feeling amongst the ANC that they could have done better and they have got a greater claim to power than we have got. On our side we are agitated because we know that we should have been given a far better percentage as our true percentage reflecting our position. So there is uncertainly about who is who. This next election properly run, and it will be properly run, and we will see to it that it is properly run, will settle that issue. It will be a confirmation of the who's who. Then you define roles and defuse ambiguities and that should help stabilise. In certain areas you're going to have open revolt against whatever the outcome is going to be and you're going to have claim and counter-claim of corruption and interference and not a free election and so on, so you breed pockets of resentment which it will have around it, volatile politics.
POM. Just a couple of last things. Does the new provincial constitution provide that a member can cross the aisle and join another political party without having to forego his or her seat?
POM. So you could see some realignment within parliament itself when your constitution comes into effect?
WF. No, the transitional process which we've agreed to in the constitution is that there be assumption of the new constitution, the legislature would continue in its present form until the next elections.
POM. If you had to quickly look at the three major concessions you think the IFP made during this long negotiating process and three major concessions that the ANC made during the process what would you point to on each side?
WF. We moved away from our claim for a split judiciary. We wanted a provincial Supreme Court, we wanted a provincial Constitutional Court, we wanted them to come into operation immediately. So that was a major concession we made. We forewent those. We made major concessions in the field of the Constitutional Court. We wanted a fully fledged Constitutional Court to become operative immediately. We have now got what really amounts to enabling provisions for a Constitutional Court as part of our sunrise clauses. So that's another major concession, and a third major concession was to confine the powers that we were looking for to powers within schedule six of the constitution and not go beyond schedule six.
POM. And the ANC?
WF. The ANC have made no concessions which I could call concessions other than the concession away from their demand for a fragmented constitution and procedures for dealing with it in three different ways. They accepted the integrity of the constitution as a whole and that I think is really a major move on their part.
POM. So if observers said that the IFP made more concessions from their original position than the ANC did, would that be a correct interpretation?
WF. Very correct.
POM. And you did this in the interests of achieving harmony, consensus and unity?
WF. We did not achieve a consensus settlement. Even if some elements are in dispute we would have ended up in a situation in which our stakes would have been that much higher, the conflict on the ground would have been that much more intense, the process of normalising politics would have been that much more difficult, the ability of parties to keep their own members and structures coherent and obedient to the norms of peace and non-violence would be more difficult. I think all those are true. The exclusion of the ANC would have been a prescription for increased violence.
POM. Now in the end this went to a vote, and this is my last question you'll be glad to know, it went to a vote of the caucus and you argued for the adoption of the constitution and Mario Ambrosini argued against it. On what grounds did you argue for the adoption and on what grounds did he argue against it?
WF. I argued for the adoption of the constitution as the best settlement that one was likely to be able to achieve in the circumstances. Ambrosini argued against it on the grounds that in the end we had made too many concessions and particularly the last minute concession of agreeing that our constitution won't be inconsistent with the provisions of the new constitution.
POM. OK. Thank you very much for your time, I appreciate it. I'll be back in a year.