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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Constitutional Proposals of the National Party - A Critical Analysis
Advocate Stephanus Jacobs is the Conservative Party Member of Parliament for Losb erg in the Transvaal. Previously a Professor of Constitutional Law at Potchefstroom University for Christian Higher Education, Adv Jacobs is the CP spokesperson on human rights.
The publication of the National Party's constitutional proposals must have come as a shock to many of its traditional grassroots supporters. The content of these proposals stand in sharp contrast not only to traditional National Party policy, but also to the election manifestos of the 1987 and 1989 elections. In an election pamphlet called "Key Issues" distributed before the September 6, 1989 election the National Party binds itself solemnly to the following principles on which basis they have received their voter support:
Ø. 1. (Question 9): Does the NP value the protection of each group's community life and its own schools?
Ø. Yes, the NP believes that the group rights of Whites. ... must be protected on the community level. This includes the group's right to its own community life, its own residential areas, its own schools and its own old age homes.
Ø. 2. (Question 12): Why does the Government not talk to the ANC?
Ø. The ANC, which is inextricably interlinked with the SA Communist Party, resorts to violence in order to seize power in South Africa, establish a one party dictatorship, destroy free enterprise and abolish freedom of religion.
In a speech by Mr De Klerk delivered two days before the 1989 election one fmds the same contention.
The NP will ensure the fair maintenance of an own community life, own schools and a choice of own residential areas. In a word, the NP will ensure group security.
Against this background one cannot disagree with the contention of the Conservative Party (and other parties) that the National Party government does not have a mandate for their constitutional proposals which proposals are based on a one person one vote system; thereby negating white community rights and interests like own residential areas and own schools which had been promised by the National Party in their 1989 election campaign.
As to the unbanning of the ANC and the SACP - the so-called "basic document" of the NP even goes so far as to concede that the Government had not received a mandate on 6 September 1989 to unban the ANC and the SACP and other organisations. (See Hansard, 5 March 1991. col. 2407).
The foregoing drives one to the inevitable conclusion that the NP - without the consent of the electorate in a further election - does not have the moral or the constitutional right to enter into negotiations with the ANC/SACP on the basis of the NP's constitutional proposals. In this regard Prof Ivor Jennings has this to say in his well-known book: The Law and the Constitution, p. 176:
"... it is now recognised that fundamental changes of policy must not be effected unless they have been in issue at a general election."
There can be no doubt that the government owes this country a general election before constitutional negotiations with the ANC can be entered into. The liberal protagonist Dr Van Zyl Slabbert has observed that a constitution cannot create a nationwide consensus, it can only recognise the pre-existing or already existing consensus. To this Ken Owen adds that even less can a constitution create a nation. Indeed, he says, the attempt to do so, might well end in genocide (like the Soviet attempt to Russify Estonia) or it might drive particular groups like the ANC, or the Zulus into endless rebellion with other groups, such as the Afrikaners. The argument cannot be refuted that Yugoslavia, with its different nations fighting each other in a bloody civil war to shake off the shackles of the unitary state which was forced upon them by constitution, is truly a case in point.
In essence the NP has devised a constitution that is neither truly liberal nor truly consociational. Whilst the so-called liberal constitution puts the "free individual" at the centre of the system, the proposals of the NP opt for some form of individualism within a framework of a bill of rights coupled with a system of conflict resolution along racial lines which finds expression in the five-member executive presidency (to which I shall return later). For the same reason, the proposals of the NP are not truly consociational. What is, however, true, is that they do not steer away from the inherent flaw of a consociational system viz that power is not vested in the people as such, but in so-called elites or wise men. It seems as if it is only the National Party which has not learnt the lesson that in modern constitutional thinking nobody likes elites or wise men to govern the state; especially not so when they are - in African context - rich and powerful. Again Zaire which has recently fallen into turmoil is also in this regard a case in point.
Furthermore, the proposals of the NP profess to create a Rechtsstaat along the lines of the modern German constitution. In this regard it immediately enters the mind that we do not live in a homogeneous state like Germany or for that matter in any other European country where legal niceties command the lives of westernised people. We live in Africa where it is common cause that the most lofty constitutional principles often have made way for dictatorships, coups d'etat, one party states, nationalisation decrees, civil war situations, corruptive practices, favouritism in the civil service and the like. In this, no Rechtsstaat - principles or bills of rights - could have saved Africa from turning democracy onto its head. And this has happened nearly without exception!
Perhaps, the greatest flaw in the constitutional principles of the NP is that it has devised a constitution for South Africa as a unitary state. This premise which has a completely false basis stands in sharp contrast with CP policy which corresponds with reality viz that the South African body politic consists of various nations and states of which some are already independent and others, like KwaZulu, are self-governing.
This "unitary state prerequisite" of the NP proposals could, at its best, only have short-term (and albeit a very short term!) success, but will prove to be disastrous in the long run. Firstly, it stands to reason that the Afrikaner people will by no means accept a constitutional position in which they would be governed by a majority of foreign people with a completely different cultural background. The first and second Boer wars proved that the Afrikaner would rather go to war than elect to be ruled by others. If that was the case against the sophisticated and the educated British, how much more would it be the case against a third world people with a totally different political, legal, ethnic, social and cultural background. Already one hears the echoes from the Afrikaner fold: "No go, Mr Mandela" and to Mr de Klerk: "No Freedom, No Peace".
Furthermore, the Afrikaner and their English compatriots who have found their political home in the CP rightly indicate that the constitutional proposals of the NP totally ignore the right of self-determination of peoples which is recognised by international law and the Charter of the United Nations and according to which each people - and therefore also the Afrikaner and their English compatriots - has the right to govern itself in its own fatherland. Nothing is for a people so basic as to govern itself. The fact that this basic right is ignored in the constitutional proposals of the NP can only be construed as a great injustice towards the Afrikaner and the English-speaking people who associate themselves with the freedom struggle of the Afrikaner. South Africa will not find lasting peace before this injustice is addressed. Perhaps, this might be the great task for the CP on the road ahead!
Of course, this issue is also linked to the question of which educational system is being proposed by the National Party. On this most fundamental issue the NP proposals decline to give an answer. Perhaps that was intentional so as not to scare off the traditional party supporters. But the mere fact that the proposals do not propose any educational system is an indication that also on this most fundamental issue the NP has yielded to the pressure of the ANC, SACP, PAC, and DP's multiracial educational proposals. From the NP government's point of view it is, of course, most important to indicate that the Law Commission has in article 17 of the proposed Bill of Rights in effect proposed a non-racial educational system for schools that receive fmancial assistance from the state. As to such an integrated school system, the CP says firmly that such a system will not have the slightest chance of success. The Afrikaner and also our English compatriots consider own cultural education with our own tax money as a fundamental right for which we are prepared to struggle. If anyone takes away this basic right we will become freedom fighters. Besides, the right of an own educational system is a fundamental right which is also recognised internationally in court cases. To Mr de Klerk we say: Do not take away our schools of which we are rightly proud. Such a step will, from the CP's point of view, indeed be treacherous.
The mechanism to resolve conflict amongst the groups nowhere finds clearer expression than in the proposals for the executive authority. Perhaps, we should cite part of these proposals expressis verbis:
The core of the National Party proposals is that the executive should not be constituted from one party alone, but from members of a number of the major parties.
Thus a multiparty government (of which Western European coalition style government is an example) is preferred to a system where the majority party alone forms the executive of government. (The Westminster system usually results in this situation.)
This formulation leaves itself wide open to criticism. The Westminster system and the Western European coalition-style government are not contra-distinctive systems. Secondly, it must be indicated that coalition formation is not excluded within the Westminster system or to put it otherwise: coalition-style government is not the privilege of only Western European governments. Thirdly, and most importantly, this proposal compels the major parties to form a coalition ("... the executive should not be constituted from one party alone, but from members of a number of the major parties"). The follow-up sentence which starts with: "Thus a multiparty government (of which Western European coalition-style-government is an example) ...." is constitutional nonsense. The Western European democracies by no means force political parties to enter into coalitions. Coalition-forming in these countries is without exception voluntary. An analogy between the constitutional proposals of the NP Western European states as to compulsory coalition-forming is not only fallacious but also without any constitutional basis. Fourthly, it must be indicated that ti provision whereby the major parties are compelled to form coalitions makes a fundamental inroad into what is commonly called Cabinet responsibility, i.e. that the executive arm of government is on the one hand directly responsible to Parliament for their actions and on the other hand indirectly responsible to the electorate for carrying out the mandate on which they have been elected. Fifthly, it stands to reason that one of the major consequences of this built-in system of enforced coalition is that the policy of any major party taking part in the elections will be completely negated on account of the fact that the coalition cabinet which is formed after the election governs within the framework of an entirely new "coalition-policy" which none of the parties foresaw at the time of the election. In practical terms this might for instance mean that the coalition-formed Cabinet could be called upon to make fundamental concessions to the ANC/SACP - alliance, otherwise the cabinet would not be able to function properly. This consequence could severely affect the constitutional standing not only of political parties in general but also and in particular of oppositon parties. This could have the further consequence that oppostion parties might lose their constitutional "watchdog position" and this would, without any doubt, be immensly detrimental to the concretisation of the democratic principles the NP proposals hope to achieve.
The idea of a five-member "presidency" is, to say the least, a constitutional absurdity. At its best, this mechanism is conceived to mediate conflict between the groups. Owen calls this five-man presidency a forum in which five tribal leaders, shielded from the passions of the mob outside, will constantly "fix" disputes lest those passions overwhelm the state and destroy the constitution. To my mind this five-man presidency will for sure not only destroy political stability and constitutional continuity but also the credibility of the system as a whole which is, of course, the cornerstone of any constitutional system. In practical terms the proposals of the NP in this regard mean that Mr FW de Klerk and leading figures like Mr Mandela and Mr Slovo of the ANC/SACP alliance and/or Mr Makwetu of the PAC could serve in one Cabinet and could rotate as the State President of South Africa! This would have been laughable, had it not been such a deadly serious affair. Could the National Party really be so naive as to believe that these leaders would now or in the future be satisfied with such power sharing concessions whilst people are dying in inter-ethnic strife for what they call their "sacred cause". Could somebody please stand up and teach the National Party and Mr De Klerk the hard lessons of Africa, of which Zaire is its most recent chapter!
Even the composition of the legislature which is proposed by the National Party is wide open to criticism. Proportional representation is, despite the generally accepted perception to the contrary, no real guardian for the protection of minorities. Although proportional representation gives each party representation in proportion to its voting support, this is subject to the so-called "five percent hurdle". This means that smaller parties (minority groups) which cannot win five percent of the vote, will be eliminated from the legislature. This could hardly be called an adequate mechanism to protect minorities. Besides this, proportional representation has, as it is seldom observed, the effect of splitting up the body politic into a large number of smaller parties. This in turn tends to destabilise the political instruments in a state to such an extent that it can destroy the body politic. The reason for this lies in the fact that coalition building (compare in this regard the NP proposals) amongst these large number of smaller parties either becomes impossible or leads to a weak or unstable government. This is exactly what happened in the German Weimar Republic in the 1920s which instability paved the way for Hitler to become Reichskanzler of Germany in 1932!
If then, proportional representation would only give scant protection if any, to minorities, whereto should aggrieved minorities turn for help or even protection, especially if they are small in numbers? The argument of the Law Commission in their proposed Bill of Rights that minorities will receive protection from such a Bill which, by protecting the individual, would thereby also protect such minority groups, is indeed a false argument. Group rights and individual rights are not to be equated with each other. Add to this that small parties or groups which cannot win five percent of the vote will not be able to find protection from the legislature. This makes it all the more important for them to be protected by the executive. That protection is, however, also excluded because small parties are by definition not one of the major parties, and according to the NP proposals they do not have the right to sit in the Cabinet. The conclusion is, therefore, inevitable that the NP proposals give only scant protection, if any, to minority groups.
The last aspect to which we could pay attention within the ambit of this analysis, is the question of how long a constitution based on the NP proposals will or could last. In this regard only the constitutional practice of Africa could give the real answer. This of course means that even a negotiated constitution between the ANC/SACP and the NP will always be looked upon by the African mind as a constitution by concession and will therefore only have limited durability.
African, state practice has not shown great respect for written constitutions. On the contrary, it has been more the rule than the exception that constitutions have either been contravened with impunity or simply torn up! Will South Africa be an exception in this regard? Only time will tell, but probabilities do not substantiate such a thesis. To my mind the negotiated constitution will - as was the case in Rhodesia/Zimbabwe - be followed up by a true African constitution (sic!) and a real omnipotent African leader. Where will the NP and Mr De Klerk then be? It is not difficult to predict. The NP will be banned on account of its track record as the instigator of apartheid and Mr De Klerk will, at its best, be - like so many ex African leaders - on permanent holiday, stripped of all his power and not in a position to assist "his" people. And the CP - we will be waiting in the wings to assist and protect our people - with God's help!