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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Constitution making with reference to CODESA, Namibia and Zimbabwe
1. What is the genesis of CODESA?
The rise of CODESA
The genesis of CODESA was the need recognised by the parties, especially the ANC and Government/NP, to have a multi-party conference to start talks about a structured negotiation process. After a slow start during the first part of 1991, parties made more progress as the peace process unfolded and after the signing of the Peace Accord on 14 September 1991, the stage was set for the parties to move closer together.
The Codesa talks in December were preceded by what was called the Preparatory Meeting, hi which 20 parties participated. This included the present 19 participants of Codesa, as well as the PAC. During this Preparatory Meeting the PAC, on the basis mat it felt that the ANC had too close lines with the Government on the issue of the process of negotiations, walked out of the talks and has not joined the talks since. The agenda of the Preparatory Meeting had basically been to discuss the mechanism of negotiations (i.e. Codesa) and the agenda for a first Plenary meeting. The Preparatory Meeting therefore decided to have the 19 parties meet in three Working Groups to prepare for the Plenary on 21 and 22 December 1991. A Steering Committee, the forerunner of the present Management Committee, was also formed, consisting of all the parties.
2. What is the main objectives with CODESA?
CODESA's main objectives are contained in the Declaration of Intent (attached), hi short, it is intended that CODESA should agree upon a process for a constitution making body and the preparation for free and fair elections. Therefore the drafting of the new constitution for South Africa is not the objective of CODESA, because it is not a representative body. The parties represented at CODESA have never been tested in a democratic election. There is therefore consensus (with the possible exception of the IFP) that the present CODESA structure cannot draw up a constitution for South Africa but should prepare the way for the election of a constitution making body that will draw up the constitution. The objectives of CODESA did not change during the course of events within CODESA 1 and 2. A basic two phase transition is envisaged (a CBM interpretation of these is included).
3. What is the composition of CODESA?
CODESA consists of a Management Committee consisting of two delegates and one observer from each of the 19 parties, as well as a Chairperson. The Management Committee's mandate is to manage the process on the way to a constitution making body. Up to the tune before CODESA 2 there were five Working Groups:
*. Working Group 1 concentrated on the creation of a climate for free and fair elections, including access to the media, control of the security forces and the like.
*. Working Group 2 was charged with drawing up constitutional principles as well as guidelines for a constitution making body.
*. Working Group 3 had the task of considering and investigating transitional mechanisms i.e an interim/transitional government.
*. Working Group 4 had the task of looking at the future of the so called TBVC States and there inclusion in the future South Africa.
*. Working Group S had the mandate to look at process and time frames.
Since CODESA 2 the Working Groups have been suspended, and Working Groups 1-4 could be reconvened for special purposes. Working Group 5 has been disbanded all together.
Working Group 1 made good progress and various decisions had been reached, some of which had already been put into draft legislation.
Working Group 4 also made good progress and an in principle decision that all parties are hi agreement that South Africa should be united country has been reached. There are however two parties who have some qualification for their support in this regard. The Bophuthatswana Government indicated that they would want to have their Parliament consider this before taking the final decision and the Ciskei stated that they wanted to reconsider. In the end though it seems that all four TBVC States would agree.
Working Group 5 had made little or no progress and therefore it was disbanded. This was also brought about by the fact that Working Group 5 did not have control over other Working Groups and their time frames and processes. The Management Committee itself will now look at tune frames and the question of processes.
Working Group 3 came up with a consensus agreement and that is contained in Phase one of the envisaged transition (attached). Unfortunately, this consensus hi Working Group 3 was fundamentally affected by the deadlock occurring in Working Group 2.
The deadlock in Working Group 2 occurred around four issues. The content of an interim constitution for Phase one of the transition, the percentages around which decisions would have been made hi the constitution making body (this range between 66 and two-thirds and 75), the role and composition of a Senate and a specific time frame for the life of a constitution making body.
The deadlock hi Group 2 basically affected all other decisions and the consequence was that no formal consensus could be reached in the Plenary session of CODESA 2 on IS and 16 May 1992. This deadlock is still hi existence and has since been aggravated by the Boipatong massacre, various other violent incidents and the vilifying of the parties by one another.
4. More information of Group 2:
Group 2, as any other group, consisted of representatives, 2 delegates and 2 observers from each of the 19 parties. A list of the 19 parties is attached. The group had a rotating Chairpersonship. These were hi chronological order the following:
Z Titus (DMC)
MV Moosa (ANC)
JT Delport (NP)
MJ Mahlangu (UPF)
J Slovo (SACP)
BS Ngubane (IFP)
CW Eglin (DP)
SP Holomisa (Transkei Government)
CW Eglin (DP)
IM Richards (Labour Party)
Initially Working Group 2, when they focused on constitutional principles, made considerable progress. The group agreed upon certain constitutional principles. These are the following:
*. South Africa will be a united, sovereign state in which all will enjoy a common South Africa citizenship.
*. South Africa will be democratic, non-racial and non-sexist.
*. The constitution shall be the supreme law.
*. There will separation of powers between the legislature, the executive and the judiciary with appropriate checks and balances.
*. The judiciary will be independent, non-racial and impartial.
*. There will be a legal system that guarantees the equality of all before the law.
*. There will be a representative and accountable government embracing multi-party democracy, regular elections, universal adult suffrage, a common voters role and, in general, proportional representation.
*. The diversity of languages, cultures and religions will be acknowledged.
*. All will enjoy universally accepted human rights, freedoms and civil liberties including freedom of religion, speech and assembly which will be guaranteed by an entrenched and justiciable Bill/Charter of Fundamental Rights.
*. Government shall be structured at national, regional and local levels.
**. At each level there shall be democratic representation.
**. Each level of government shall have appropriate and adequate legislative and executive powers, duties and functions that will enable each level to function effectively; such powers, duties and functions to be entrenched in the constitution.
**. In addition to the powers, duties and functions entrenched in the constitution, each level of government may delegate powers, duties and functions to other levels of government.
**. The general principles of the constitution including the terms of the Bill/Charter of Fundamental Rights shall apply to each level of government.
*. The new constitution shall provide for effective participation of minority political parties consistent with democracy.
When the group moved onto the constitution making body/process, it was clear that problems were occurring. The parties suddenly realised that they were now talking about the power that will vest in the constitution making body and which finally affects die election and composition of a new government. In the course of the negotiations the two main negotiating partners, the Government/NP and the ANC, realised that the small layer of trust that had been built up was a very thin one indeed and that mistrust was looming on the horizon. This was aggravated by the ANC proposing a two thirds majority in the constitution making body and Government/NP insisting on a 75% majority. When the ANC came with a 70% compromise on the condition that the Government drop the Senate idea as well as the fact that they said that if the constitution making body could not reach consensus within 6 months, a referendum with a normal 51 % majority would prevail, forced the two parties into their respective corners. This was aggravated by the fact that the NP Government insisted on a Senate (the composition of which had not been thought through but could possibly be the present Governing structures) and that this Senate would hi the Governments view have almost vetoing powers over the constitution making process. For one week the parties tried to break this deadlock but die time was eventually too shon and the deadlock could not be broken.
5. The course of events within CODES A 1 and 2
CODES A 1 went very well and basically the parties decided upon the Declaration of Intent (attached). Secondly the parties decided upon the mechanisms of Working Groups and their composition. CODESA 1 was a significant breakthrough in the negotiations process and a good and strong foundation upon which to build. CODESA 2 was less of a success, if not something of a failure because of the deadlock. The parties took a hard line initially but statesmanship on the part of President De Klerk and Mr Mandela saved the face of CODESA 2 somewhat. The fact that there was high international presence and interest in both CODESA 1 and 2 enhanced the importance.
I have already above indicated the problems within Working Group 2 that affected the whole course of CODESA 2.
6. What does CODESA mainly have to do with the constitution making process in South Africa
Frankly CODESA is the only multi-party attempt to structure a constitution making process in South Africa. There are various bi-lateral negotiations and talks going on, but none of them have the legitimacy of CODESA.
7. Why have negotiations really ground to a halt?
In addition to the reasons given above, the following can be remarked:
*. CODESA 2 and its timing had been forced on the parties beforehand. In hindsight it was a mistake to stick to the date of 15 and 16 May despite the fact that it was clear the week before that no breakthroughs were likely to occur.
*. The Government/NP resounding victory in the referendum in the middle of March resulted in them being more assertive in their negotiating stance. This in the end affected negotiations negatively in my perception.
*. Mistrust between the ANC and the Government/NP resulted in the breakdown. This was aggravated by actions and speeches taken by and given by proponents of the two parties.
*. On the ANC's side, there was a feeling that the Government tried to trap them into an interim constitution and interim period indefinitely affecting a forced coalition. The ANC does not trust the Government not trying to build in a white veto into the constitution making process. The ANC has alleged that the Government has not accepted the internationally accepted consequences of democracy. The ANC were also forced by the Boipatong incident, which was perceived as the police and therefore the Government having a hand in the killing of the people to consolidate its constituency and therefore it broke off negotiations to do that through mass action.
*. On the Governments side an equal amount of mistrust exists. The Government does not trust the ANC to stick to a two thirds majority in the constitution making body but fears that they will revert to a normal 51%. They also do not believe that the ANC is genuine in their endeavour to negotiate because they do not want to disband MK. The Government is not prepared to just because of pressure give hi to any kind of transitionary structure lest the country will fall into anarchy. Personally I think it was a mistake for the Government to not have accepted the 70% proposal by the ANC.
8. What is the future for CODESA?
The future for CODESA as a body looks bleak at the moment. On the other hand there is and this has been accepted by all parties no alternative to negotiations. So the future for the negotiations process looks good, but it might be in a structure called something else. I think that the unwieldy and big structure of CODESA will probably make way for a smaller structure and it is possible that we could see after the resumption of negotiations a quick transition to what is now called in phase one a transitional executive council.
9. Any significant report of Working Group 2?
Unfortunately the minutes and reports of group 2 are still confidential. We have included the agreement on the constitutional principles. Group 2 however did not deliver any report to the Plenary of CODESA 2 and therefore the information given above will have to suffice.
10. Can any further questions about CODESA be answered?
Yes, it is possible to send off more questions and I would be happy to oblige as soon as possible.
The Nineteen Parties Represented in CODESA:
African National Congress
Inkatha Freedom Party
Inyandza National Movement
Intando Yesizwe Party
Labour Party of South Africa
Natal/Transvaal Indian Congress
National People's Party
SA Government Solidarity
South African Communist Party
United People's Front
Ximoko Progressive Party