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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Multi-Party Negotiation Process leading to Constitution
The Process of Giving
At the time of the Plenary session of the Multi-Party Negotiating Process (MPNP), quite a number of observers remarked that a miracle had occurred: Parties and organisations formerly directly and bitterly opposed to one another had come a long way to negotiate and had reached a compromise. History will, indeed, look at the MPNP at the World Trade Centre, Kempton Park, as something of a miracle. From March to November 1993, in nine months (strange, is it not?), a negotiated Constitution for the Transition was "conceived" and "born". In addition, 4 other Draft Bills providing for both Transition structures for the period of preparation for the elections (the Transitional Executive Council, the Independent Electoral Commission and the Independent Media Commission) and a permanent body to control broadcasting (the Independent Broadcasting Authority) were agreed upon. Also, a new Electoral Act to govern the elections for the Constitutional Assembly was agreed to. This is truly remarkable for a country which, 3 years earlier, had been on the brink of civil war and economic collapse.
Whereas the bulk of this publication will focus on the contents of the Constitution for the Transition, the aim of this chapter is to provide the reader with an insight to the process leading to the agreement on this Constitution - the process of giving birth to a Constitution.
LESSONS FROM THE CONVENTION FOR A DEMOCRATIC SOUTH AFRICA (CODESA) EXPERIENCE
One could well ask the question why it was that the CODESA experience had in its duration of seven months (prematurely aborted!) not produced the same results. The answers to this question are varied and still the subject of contentious debate. Suffice it to say that CODESA failed for numerous reasons, none of which could be attributed to one single political grouping. There were mistakes, errors of judgement and brinkmanship on all sides. It is more productive to ask what lessons the CODESA experience had for the MPNP.
Looking back, the CODESA process had several serious flaws: The structure of CODESA, centred around five working groups, was unworkable. With each working group consisting of almost 80 people it should have been clear that no negotiating, let alone compromise seeking, was possible. In addition, the process followed in the working groups was bound to lead to deadlock. Every participating organisation brought its "position" on various issues to the working group in writing, but was also given the opportunity to present it verbally. This not only resulted in tons of paper, but also in organisations becoming entrenched in positions from which it was very difficult, if not impossible, to move. CODESA therefore, had no central negotiating body. The Management Committee of CODESA, even though it consisted of all the participants, was not geared toward consensus-seeking.
In this context, there was also a lack of "technical" or "impartial" input. Every participant, faced with 18 other organisations, tried to bargain as hard as possible - but the input (and often the arguments) remained essentially party political. It is worth noting that it was only Working Group 3 (dealing with the Interim Government issue) which produced a compromise that could later be used in the MPNP process. The main reason was that Working Group used "technical input" from "experts" who were (politically) acceptable to the participants. This recipe was later followed with the technical committees of the MPNP. All the other working groups failed to produce anything which could be used in the MPNP - basically because the politicians (at that stage at least) could not reach compromises.
All this constituted a lack of compromise-seeking and deadlock-breaking mechanisms in the CODESA structures. Perhaps the negotiating process had to mature first, perhaps the time was not yet right for the political groupings to realise that no one could "go it alone". The fact is that CODESA was a first trial run which, although serving a purpose, was doomed to end in deadlock. Looking back, political leaders would perhaps also agree that, at the early stages of negotiations, they were perhaps not as skilled as they became subsequently and had an insufficient sensitivity to what is called "process": To maintain progress with negotiations while reaching "win-win" compromises along the way.
A different but important factor in the failure of CODESA was the breakdown of "bilaterals" after the March 1992 referendum. Up to the referendum, the South African Government/National Party and the African National Congress maintained regular (more or less weekly) contact at a senior level in what would later become known as "bilaterals". For various reasons, these meetings ceased after the referendum. This, in turn, resulted in serious strains in the CODESA process. As will be pointed out later, bilaterals was one of the important reasons why the MPNP succeeded.
Finally, a seemingly minor, but conceptually important factor which at least led to criticism of the CODESA process, was the perceived "political" Secretariat consisting of (only) a representative each of the ANC and the SA Government. Other parties, including the Inkatha Freedom Party, were suspicious of this secretariat, however well it had done its work. A similar suspicion also applied to the Daily Management Committee, in which only one representative of the loose grouping later to be known as the Concerned South Africans Group (COSAG), served. These suspicions did not destroy the CODESA process but contributed to the eventual deadlock.
It is, perhaps, easy to criticise CODESA ex post facto. That is not the intention here. The important point is that, as will be clear from what follows, these flaws became lessons heeded by the founders of the MPNP - thereby contributing to the eventual success of the MPNP and the birth of a Constitution.
FACTORS IN THE MULTI-PARTY NEGOTIATING PROCESS ASSISTING IN THE BIRTH OF THE CONSTITUTION
What made the MPNP the relative success it had been? It certainly was not easy and without its problems. People close to the process at stages wondered if it would last through the latest crisis, whether it was the assassination of Chris Hani, the raid on the Pan Africanist Congress or the fuel price debacle. And yet, it survived not the only these crises, but even the withdrawal of the Freedom Alliance. Certain factors can be easily identified.
The structure of the MPNP (see the diagramme) ??????
The Plenary session of the MPNP was seen as the body to confirm any (and in actual fact the final) agreements reached by the negotiating bodies. The leaders of all the participating organisations did that in November 1993.
The Negotiating Forum had a short life. As the second highest body it would have publicly finalised the agreements of the initially smaller and closed Negotiating Council. When the Negotiating Council was, however, enlarged to two delegates and two advisers per participant and opened to the media, the need for the Forum fell away and it delegated all its powers to the Council at its second and final meeting in June 1993.
The Negotiating Council became the representative negotiating body. After receiving reports from different bodies, it would debate the issues and reach agreements, which in turn were converted into (amongst others) the Constitution and the Draft Bills mentioned earlier. Now and then the Council would take resolutions on ad hoc or urgent matters, such as the incorporation of Walvis Bay in Namibia and the raid on the PAC. This, although not the bulk of its business, established the authority of the Negotiating Council.
The Negotiating Council received reports from the Planning Committee, a body consisting of prominent negotiators serving in their individual capacity, but nevertheless spanning the political spectrum. The Planning Committee played a very important role in the MPNP, because the individuals serving on it accepted the responsibility of "guardians" of the process. And although the Planning Committee was not mandated to take any decisions on substantive matters, its role in pre-empting and averting problems was decisive for the success of the MPNP.
The Council also received reports from 7 Technical Committees, consisting of non-party political "experts" who were, nevertheless acceptable to the participants. Although spanning the professional spectrum, the Technical Committees consisted of a majority of individuals from the legal profession. The most important flaw in the CODESA process was avoided through the work of the Technical Committees. Instead of political groups putting their positions verbally to one another in the Council, written submissions were presented to the Committees, thereby avoiding grandstanding and entrenching of positions. Most of the Technical Committees presented reports to the Council already containing the seeds of compromise and interest-based (as opposed to fixed position) proposals. In this way, the Technical Committees, although formally prohibited from "meddling" in political issues, acted as compromise-seeking and deadlock-breaking mechanisms. In the few instances where Technical Committees could not come up with a compromise, the matter was either dealt with by the Planning committee, or by an ad hoc task group consisting of both politicians and technical experts. All problems were dealt with in one or more of these structures.
The Council also set up two Commissions. Again, the members were non-partisan but as a whole acceptable to the spectrum of political organisations. The Commission on the Demarcation/ Delimitation of Regions submitted a report which had to be dealt with by a political task group. The result was the constitutionally entrenched nine provinces. The Commission on National Symbols' report was submitted to the Council, but for various reasons no agreements were reached. The Transitional Executive Council will still have to deal with this important matter before the elections.
A not so well known and fairly informal structure of the Planning Committee was the so called "Subcommittee", consisting of Messrs Mac Maharaj, Ben Ngubane (while COSAG was still in the process) and Fanie van der Merwe. Without overstating the case, it must be said that this small committee did as much and more than any other to keep the MPNP on track. Acting as "trouble shooters", advisers and strategists, the members of the Subcommittee achieved to keep a low profile, thereby enhancing their effectiveness. The fact that, at least initially, the Subcommittee consisted of 3 persons spanning the political spectrum, gave it a certain degree of legitimacy which proved crucial. Advising especially the Planning Committee, the Subcommittee constituted a deadlock-breaking mechanism with no precedent.
A last relevant structure was the Administration. Again, the lesson from CODESA was learnt and an non-partisan body, the Consultative Business Movement, was contracted on a non-profit cost basis to provide the administrative and secretarial back-up necessary for the MPNP. The personnel employed were non-partisan and acceptable to all the participants. This contributed to the smooth and effective running of not only the administration, but also of the process.
It can be stated without fear of contradiction that the structures of the MPNP, much more streamlined and effective than those of CODESA, were established for and geared towards reaching consensus and compromise.
The Process of the MPNP
A most important procedural factor was the constant flow of reports and referrals between the Technical Committees and the Negotiating Council, through the Planning Committee. This allowed for increasing clarity and consensus-seeking. The MPNP was, indeed, structured to be as flexible and informal as possible. Debates were to the point, fairly short (only once or twice a time limit had to be imposed) and focused on the issue at hand. Very rarely, and almost always in the case of non-negotiating issues (such as the PAC raids), participants made party-political speeches. But even then, there was a tacit understanding that it was necessary and had to be endured. Rotating chairpersons, selected from an appointed panel of 8, ensured that participants had trust in the impartiality of the chair. The MPNP developed its own unwritten but very definite "code of conduct". One or two government ministers had to learn this the hard way when they used the often more robust parliamentary manner of speech in the Council.
The MPNP was, initially, as inclusive as one could have in a polarised society such as South Africa. With the withdrawal of COSAG it lost some of this inclusivity. This withdrawal did, however, not destroy the MPNP. It was as if the remaining participants, while endeavouring to have COSAG return, were also determined that "this time, there can be no failure". History will have to judge whether this determination was a correct attitude under the circumstances.
While the CODESA process was virtually closed to the media, the MPNP very early on took the unprecedented step of opening up the proceedings of the Negotiating Council to the media and diplomatic liaison officers. Through this transparency the media could report as fully as possible on the process of negotiations and the international community could stay abreast of events. The public also profited from greater transparency by being given the opportunity to submit proposals to any technical committee on a variety of issues. In the event of members of the public wanting to witness the proceedings, the Administration used a media "overflow room" with television monitors to afford them the opportunity. Various youth groups and researchers made use of this facility.
A factor perhaps not given its rightful place yet, is the compulsory representation of one woman delegate per participating organisation on the Negotiating Council. This was the result of a strong women's lobby bridging party political lines. Without entering the difficult debate of affirmative action, it must be stated that most of the women delegates "rose to the occasion" and soon became valuable participants in the process, also contributing skills to chairing and the Planning Committee.
One of the most important factors contributing to the success of the MPNP, is the building of personal relationships and trust between the various negotiators. Several factors facilitated this: Working long hours, often into the early hours of the morning, to make a deadline, sharing the danger and excitement of the attack by the AWB on the World Trade Centre in June and finally, experiencing the sweet taste of success when the different bills were accepted by the Council and later the Plenary, are but a few of these. These relationships kept the process on its course when external factors and forces were intent on destroying it. The same relationships and trust will continue to play a very important role in the Interim Government of National Unity for the next five years.
Of course, all this did not take away the serious differences in both process and content between negotiators. Arguments were still heated at times, participants still flexed political muscles on occasions, sometimes the drama could be felt and the atmosphere cut with the proverbial knife. Three examples are worth mentioning.
The withdrawal of COSAG in three stages (firstly the IFP, the CP and the KwaZulu Government, secondly the Bophuthatswana and Ciskei Governments and finally the Afrikaner Volksfront) was traumatic. Although this was especially true of the first stage, the continued presence of other COSAG parties softened it. When Ciskei and Bophuthatswana, and later the AVU, also withdrew from the process, it was almost expected. The most important reason for this, now seemingly inevitable, withdrawal was the fundamental difference on the constitution-making process - the so called one or two phase transition. This issue is still a contentious one.
The ongoing violence was, and is, a threat to the negotiating and transition process. This was brought very forcefully to the Negotiating Council when Chris Hani was assassinated. Although it happened during the April recess of the Council, the future of negotiations hung in the balance for a few crucial weeks. After reconvening in early May, the threat had passed, but the events during and after the assassination made every negotiator realise how fragile the process actually is.
An "outside" issue was almost responsible for derailing the process when the cellular telephone was brought onto the agenda of the Negotiating Council. This issue, with its high profile and emotional connotations, put both the SA Government and the ANC in a corner, because of actions taken by constituents. It strained the personal relationships of negotiators more than is generally known, but in the end the issue was managed, albeit not fully resolved.
Issues such as these could not have been managed without what can be called a "process alliance" between negotiating parties, more specifically the ANC and the SA Government. The now well known good working relationship between Constitutional Development Minister Roelf Meyer and ANC Secretary General Cyril Ramaphosa was a symbol of this "process alliance". It meant that both groups, although differing fundamentally on substance, realised that they need one another for the process to succeed. It was a natural consequence of the "Record of Understanding" reached in September 1992. The ongoing bilaterals between these two groups, but also those with COSAG and other participants, was one of the other most important improvements on the CODESA process. It showed that most of the participants not only possessed the political will to make negotiations work, but were also willing to make compromises to achieve that goal. South Africa will benefit from the concept of an Interim Government of National Unity until 1999 and the nine provinces with strong delegated powers, to mention but two areas of compromise.
It should be stated, in conclusion, that the participants in the MPNP also had to face constant constituency pressures, whether it was high expectations or the criticism that it had "sold out". The danger of losing political power and leverage was an ever present one. This, together with the pressure of economic realities, to some extent explains the "haste" of the negotiators, the setting of difficult timetables and deadlines (such as the election date) and the pressures associated therewith. These factors almost obstructed the birth of the new Constitution, especially in the last days when careful planning had to take place to coordinate reports from various technical committees, keep the agendas and reports coming in and ensuring that the Council used its limited time effectively. But the political will to succeed, combined with patience, endurance and often sheer will power, made the birth of a Constitution possible.
Looking back, it is clear that the South African constitutional negotiating process, starting on very weak legs with CODESA, had come to maturity in the MPNP. The lessons had been well learnt and taken seriously. Nobody will say that the Constitution is a perfect one, but as one (often extremely critical) newspaper editor had said: "It's the best that we have". And although the contents can be improved on, the process by which it was given birth will one day be acknowledged as one of the most extraordinary phenomena of modern day constitutional history.
Dr Theuns Eloff
9 January 1994.