This resource is hosted by the Nelson Mandela Centre of Memory, 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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
01 Dec 1995: Kriegler, Johann
POM Judge, let me start with a rather open-ended question. When you were chosen to be head of the IEC had you any idea of what the position would involve, what the responsibilities would be and had the reality got any relationship to what you were told your position would be in the first place of what your responsibilities would be?
JK When I accepted the job I was standing in my swimming trunks in a cottage at the seaside. I thought what I was accepting was a job as a member of the Electoral Court. Had I known what I was letting myself in for I would have thought again but I would still have accepted it. I had no idea what the job entailed. I don't think anybody at that stage really had any idea of what the job entailed. With the knowledge of hindsight, I would still have done it.
POM You would still have done it. That was going to be my next question. I was going to ask you in retrospect if you were asked to take the job again would you do so or would you do so with qualifications or would you require that what it involved be spelt out far more clearly than it was before?
JK Well that's an ambiguous question. I presume you mean would I accept exactly the same job as last time round, because it's never going to arise again. I would have done exactly what I did do, namely accept and then try to find out what the job is about. Of course if I had been asked very much earlier I would have had a lot of qualifications, I would have had a lot of caveats, ifs and buts.
POM Like, for example?
JK Like don't try to do it in 3½ months, it's just impossible. I would have been wrong, of course, as the record shows. I would have said don't try to exclude the government agencies from the exercise, it can't be done without them. I would have been wrong in that respect as well. But certainly it would have been a much tidier and a very much neater and cleaner exercise if we had had more time and had not been cut off from the one major source of technical skills available in the country.
POM Which was?
JK The government, the existing government of the then white South Africa with the Department of Home Affairs that had fairly extensive experience of running elections among whites and what we call coloureds in this country, people of mixed blood. Thank heavens we didn't know that because I subsequently found out in post mortems with people from Home Affairs that they knew less about the job than we did. Thus, for instance, their top expert in the post mortem shortly after the election said that his major criticism of the IEC was that it didn't establish and maintain electronic communications with all of its voting stations. The poor fellow didn't know that over a third of the voting stations in the country were perforce in places where there were no telephone services and there could not be any because they were hundreds of kilometres from the nearest point. He then said, "Well why didn't you use faxes or something else?" Of course he didn't realise that that meant lugging electrical generators and wiring across hundreds of kilometres, or tens of thousands eventually. We were better off without them. It wasn't a good exercise but it would have been worse if we had used the 'experts'.
POM Now before the local elections did either members of the Local Government Task Force or representatives of the Department of Constitutional Affairs come to you and ask you what lessons had been learned from the elections in 1994 that could be applied to the local elections in 1995?
POM Did that surprise you?
JK I communicated with the government in mid-1994 at various levels about the local government elections which at that stage were due for October 1994. I first raised the matter in May and then again in June and then again in September of 1994 and by then I got the message that the political role players weren't concerned about the IEC's views on elections. For a number of reasons, some good, some not good they had decided to dump us. I think it was a mistake, I think it was an understandable mistake but a mistake notwithstanding, and therefore a lot of the mistakes we made last year were remade all over again in the local government elections and more particularly it cost a great deal more than it should have cost if they had learnt some of the lessons which we were only too happy to teach them. Indeed I came to the somewhat sobering conclusion that most of the people involved in the local government election administration hadn't bothered to read the IEC report.
POM What lessons were there to be learnt, and in particular what lessons were there to be learnt that would have applied to the local government election? First in general what lessons were there to be learnt regarding the conduct of elections, and two, particularly first transitional elections in what one might call divided societies, and three, what lessons could have been learned by those who were administering the local government elections?
JK Well some of the lessons they did learn, not from us, I think they learnt them in any event, one was take more time, two was don't try it without voters' rolls, three try to use as many people in local government as possible. The lessons they didn't learn were get your basic ground rules of the game in place before you start the contest, don't change regulations as you go along, don't confuse inexperienced staff with new instructions, new guidelines as you go along, don't confuse political parties with a changing set of rules. Even before that see to it that the political parties and the local agents know what the rules are. Meet with them regularly, frequently, spell it out for them because there were many of the local government elections that went awry because the people on the ground didn't get their nomination procedures right, they didn't get their documents in order, they didn't have their timing right, they didn't understand that some electoral contests were going to be on a proportional representation and some on a constituency basis. Some places they understood it, some places they didn't.
I think that what they also didn't learn from us and the one respect in which they were considerably less effective than we were was in voter education. I sensed in the press both before and after the elections and from a number of people whom I had had out there looking, in fact the understanding of what these elections were about was much weaker than last year. Admittedly the message was a little more complex. The transitional libratory election is an easy one to explain but the miles of people patiently standing waiting for the right to vote last year is, I think, to a very large extent due to the fact that the people knew what they were voting for. This time round they didn't and I think one could have put across a very simple message that last time you voted for liberation and this time you're voting to make it real where you are. The poster that the ANC put out 'MAKE IT HAPPEN, MAKE IT REAL WHERE YOU ARE, WHERE WE ARE', but that message didn't get through. It wasn't that, look, this is the last step towards actually taking control of what your street looks like, what your garbage disposal is going to be like and your actual existential realities.
I don't think they learnt one single lesson about liaison up and down. The electoral results of the local government elections are, and I say this off the record, very much more problematic than ours were. We didn't have any that we didn't have audited eventually. I wouldn't put a blue bean on the reliability of a large number of the results that came out of the provincial offices with regard to the local government elections. Not that I think there was necessarily hanky-panky but they didn't have close checks down to the counting point to see that the data that they were receiving was reliable and they encountered exactly the same problem as we had, that forms have been put out to be completed by people, form A and form B and form C and form D and that people didn't understand what forms these were and what their purposes were and in the result fairly sophisticated audit trail check documents proved more of a hindrance than an aid. They would have been better off having the back of a cigarette box but a really skilled supervisor to stand there and do the job. Their collation of information was therefore poor and their verification was poor. Those they did not learn from us. I think those are the essential messages. It took them eight days eventually to do two thirds of the country's votes, unreliably.
POM Let me put just what you said in the context of the IEC report itself, particularly pages 62 - 67, 70 - 71, where you document the various impediments that the election itself faced whether it was unsealed ballot boxes, ballot boxes being dumped, the existence of pirate stations, one thing or another. There is a whole catalogue of it. I want to put that in the context of, you probably are very familiar with this document, this is the auditor's document.
JK I wouldn't say I'm very familiar with it. I have studied it at some stage in the past.
POM It says, "No comprehensive formal documented strategic and business plan for the conduct of the entire electoral process setting out all the steps required to enable a properly managed and controlled election to take place."
JK That's quite correct.
POM It says, "While a structured training programme was instituted it has proved to be inadequate partly due to last minute changes to voting stations and personnel."
JK That's perfectly correct.
POM It says, "The planning of and control over the supply, use and return of voting material after their distribution from the central warehouses was virtually non-existent."
JK That's not correct.
POM "The planning and control measures instituted for the counting and controlling of ballot papers at voting and counting stations were inadequate."
JK Proved unreliable. In theory the whole electronic computer programming was spot-on. We had one of the top experts in the country. He proved to be the wrong person for the job but we only found that out half way through the counting. We didn't have time to go out and find experts and verify their qualifications. We were running.
POM Then it says that, "Planning and control measures instituted for the collation of the election results were inadequate."
JK The planning was not inadequate. The programme proved to be inadequate, yes. We had a report from KPMG, Aitken & Peat, one of the top firms of auditors in the country that we got to do us a critical, clinically cold analysis of what went wrong in the count and collation process. The Auditor-General never bothered to look at that. It's a detailed 40-page report showing when we started, what we did, what went wrong, why it went wrong, where it went wrong. It was basically that the programme that had been selected to do the job was not capable of doing the job in theory.
POM Is that the programme - by the programme you mean?
JK The computer programme. And then that the documentary back-up for the basic source material for the programme was too sophisticated for the users out there in the field. They just couldn't do it, the supervisors and counting stations couldn't cope with it. I can remember one particular example which was just plain finger trouble also and that was that you had a principal report document and a back-up document. The one was blue and the other one was white so they were quite clearly distinguishable from one another, but the process made provision for these to be faxed through so there is not much of a difference between a faxed blue document and a faxed white document and they got them cocked up at the head office, at the collation office. You know that kind of thing that people hadn't thought about.
In principle of course, if you go back to it, there should never have been counting stations at all. You should have done your counting at the voting stations so that you didn't have the collation problem and the transporting risks and the identification of ballot boxes that had been dumped at one central point. I'll tell you in a moment about one of the nightmares I still have, and I mean that literally. But the security advice and the unanimous view of all of the political parties was that we dare not try to count at voting stations as had always been done in the past. The risk was too big, the risk of interference, of sabotage, of destruction of voting materials. In retrospect that was wrong. A week before the elections the current Executive Chief of the - Norman du Plessis came to me and he said it's a mistake having 37 counting stations at one place, which is what we did at NAZREC down at the south west of Johannesburg. So I said, "Yes, what should we do?" He said, "Let's try to decentralise them.' I said, "OK let's see what we can do." The first step is we get on to the police and we say to the police that we anticipate major logistical problems in separating out our voting material if we've got to have them all coming into NAZREC. We've got to have at least ten separate points. The police said it's out of the question, you can't do it. We went to the Minister of Defence and said, can you give us military back-up for safe counting points? We are now talking about five days before the election. Eventually we had to stick with it.
POM They said they couldn't do it?
JK They couldn't give us security at dispersed points.
POM This is the army?
JK Army and the police.
POM The vaunted army and police of the South African state couldn't provide simple security?
JK At so many different places.
POM It doesn't sound like a very vaunted army?
JK Well, we had to introduce a special voting procedure in order to enable the Defence Force to call up Citizen Force soldiers so that they could vote themselves otherwise they wouldn't have got the 22,000 that actually came in response to the call-up. Those are things that can be written up one day. But the fact of the matter is that we wanted for instance 250 plus voting stations in Soweto. We said we need them, it's essential. We eventually had to settle for 137 with many of them multiple stream voting stations because we couldn't get security cover.
POM Do you believe this was deliberate on the part of the security forces or just logistically impossible from their point of view?
JK I have no reason to think that there was male fides involved in it, but what I do know is that this time round there was more than adequate voting station security back-up for more voting stations than we had. Of course the country has come a long way. We don't need a brigade in KwaZulu any longer, we don't need a lot of policemen guarding parking garages against attacks by right wing terrorists and so forth. I think that this was more finger trouble, more administrative than deliberate.
But if I can just bore you for one second with my nightmare. I was arriving at NAZREC on Saturday night, voting having ended in Johannesburg on Thursday and I got to NAZREC and not one vote had been counted yet. This is 37 counting stations, this is far and away the largest concentration of voters in the whole of the country, this is about 20% of all of the votes cast, and they hadn't started counting 48 hours after the ballots had closed. And I got there because I had been jumping up and down and screaming at head office and they said, "Well come and have a look what you can do." And I got there and there was a mountain, literally a mountain of ballot boxes that had come in from 400+ voting stations at about five or six ballot boxes per voting station, that had all originally been dumped on the sidewalks by Presiding Officers who had had enough because they weren't receiving them fast enough and checking them in and signing them in and getting receipts. And we then ended up with a couple of thousand ballot boxes, some had burst open, some had been dumped on the top of others, some had had their labels pulled off, some had had their locks broken. In terms of the rules if a ballot box is open, if it's seal is broken, if it's not properly identified you chuck it out, you throw it out, you reject it because you can't verify it. In terms of the Electoral Act and the regulations you have to do a verification process of each and every ballot box with the whole audit trail before you start counting. You had to get the proper forms inside, identify them with the returns from the voting officers.
POM Was that the point at which you made the announcement that you would do away with the reconciliation process?
JK I said reconcile if you can and if you can't, count. Otherwise we would never have counted. But that scene of the mountain of ballot boxes and a couple of disconsolate voting station officials hanging around in the background, I actually still get cold shivers. Anyway, the parties squealed like stuck pigs and eventually they accepted it.
POM You say the parties squealed like stuck pigs, squealed about what?
JK About not doing a reconciliation before you start counting.
POM So that will be one of my questions in a little bit, but let me just back up a little. I note that in the report there are statements like, "The IEC was under enormous political pressure to announce the results." In another place, "If the letter of the law had been adhered to there would have been no count in respect of many voting stations, the political implications of such a turn of events would have been disastrous." In the auditor's report it says, "Given a different course of events the country might have been plunged into civil war given the mismanagement and array that they felt." So you had a situation of enormous political pressure bearing down on your back. The alternative to there not being a result, a count, an announcement would be perhaps to literally plunge the country into civil war, at least into chaos or to result in a declaration of a state of emergency. You therefore had to produce a result, it would seem to me?
JK That's a little over-stating.
POM Understated to the extent that ...?
JK We were desperate to produce the result not a result.
POM OK, then if you are desperate for a result, which became more important; to produce a result that adhered to the letter of the law with regard to electoral procedures or a result that would be acceptable to the political elites in particular and therefore acceptable to the people?
JK You know what we did, we went and we debated what we must do with technically irregular but not ostensibly dishonest ballot papers and we took a decision in principle, as a full commission, unanimously after considerable debate and having heard our monitoring division in particular, we took a decision which essentially boiled down to this, that absent an indication of fraud an irregularity would not invalidate a particular ballot paper or ballot box containing ballot papers, and we adhered to that. That I think was morally and politically the correct decision. It was legally not the correct decision.
POM But I am asking you, was that done in the knowledge that unless you started to make decisions like that, that were the morally correct decisions, that the result would be either the annulment of the election, no election result and plunging the country possibly into civil war?
JK No doubt.
POM Therefore there was an overriding context to the way in which you made decisions and that was the alternative is too possible.
JK Too horrible to contemplate.
POM Too horrible to contemplate therefore we must do everything possible to avoid at all costs that horrible alternative, therefore this made compromises necessary.
POM Therefore this would mean that what ostensibly in a more normal situation might be called substantially free and fair might not in this situation be regarded by the same criteria?
JK No. I disagree.
JK I will insist and persist that there was nothing materially lacking in the freeness or the fairness of the election. It was technically flawed, yes. If I can take the Soweto, NAZREC example, we had some several thousand ballot boxes, many of them, hundreds of them we could not tie to a particular voting station because the labels had come off, because the seals had come off. Not one ballot paper was counted that did not have the Presiding Officer's secret mark on it. Not one ballot paper was delivered at NAZREC that wasn't counted, a properly stamped one that wasn't considered for counting. In the result, although we had some 400 voting stations confused with one another in terms of ballot papers, because we were on a proportional representation system and we counted all kosher ballot papers and rejected all non-kosher ballot papers, I am satisfied that the result, for instance, for the greater Johannesburg area was not only free and fair but very, very substantially correct down to a couple of thousand votes maybe in three million.
POM But you were not in a position, given the chaos of things as they existed, you were not in a position to say whether all votes had been accounted for?
JK Oh yes, oh yes. If you check out the anticipated number of votes from each magisterial district with the number of votes actually cast, which is a check that we did over several weeks after the election, there were two places where there were over 120% of anticipated, both next to areas where there was major breakdown in administration, and in the rest the statistical forecast for the votes in each and every area checked out within tolerances. There were no massive losses of votes and there were certainly no massive duplications of votes. That's for sure. So the word 'chaos' is a good word if you're talking in terms of the Auditor General, but it's not a good word if you're talking in terms of the National Party and the ANC and the PAC and the DP all standing there and supervising.
POM To what extent was this process, in the light of what the Auditor General said ...?
JK I'm not prepared to talk anything in the light of what the Auditor General said. I think that that was a biased report written in bad faith.
POM When you say bad faith you mean?
JK Bad faith. I had an undertaking from the Auditor General that we would sit down and debate each and every one of his queries in detail. I am still waiting for him to come back to me. When last I saw him I refused to speak to him because I said I don't talk to people who don't keep their word. I think it was written in bad faith. They were at the IEC offices within a month of our having been appointed and they wanted to sit in on our deliberations and I told them to go and get stuffed. I was not a government agency. I was an independent agency. We were not going to work under their supervision. They could audit us subsequently. From that day on we didn't see eye to eye. I think that there's a political agenda written into it as well.
POM Let me rephrase because in a roundabout way I'm getting to what I think I'm trying to get at.
JK Ask the same question, just don't preface it with the Auditor General then you'll get a straight answer out of me.
POM Here you have a situation of a great deal of disorder at the counting stations, like NAZREC is a very good example. You were under tremendous pressure to produce a result from the political parties and from maybe the public in general but most of all the political parties. You were driven by the consideration that the alternative to not being able to sort out this mess may be to plunge the country into civil war and therefore you have to make decisions in a context that you would not make them in in a more normal situation. For example, you've got to say adherence to the letter of the law is no longer an especially important consideration if it results in the slaughter of 50,000 people. If the vote looks fair we count it. If it doesn't, if it looks fraudulent we don't. Let's keep the rules simple and move on. To what extent were the commissioners during this entire process, from crisis to crisis, in touch with either the State President or with the leaders of the political elites? Was it a process of consultation back and forth?
JK Continuous, continuous at all stages. No decision of any moment was taken without informing the major role players within an hour. During the week before, the week of and after the elections, for that fortnight I must have been in contact with each and every one of the major political parties three or four times a day. Most of them had a representative sitting in on the 8th floor at our head offices where our executive suite was. People like Fanie van der Merwe and Mac Maharaj and Cyril Ramaphosa and Roelf Meyer and Sipho Mzimela and Koos van der Merwe, were in and out of the office, Douglas Gibson, Tony Leon's brother the Attorney. Anyway there were hourly visitors in and out. The decision with regard to the non-reconciliation of votes was the one major decision taken against the protests of one of the major role players.
POM Just one.
JK That was the one and the other one was the decision to carry on with the voting notwithstanding the fact that in some voting stations the IFP stickers had not arrived. We felt we couldn't close the voting stations. People had been standing, as you saw, for many hours waiting and if we were to close at that stage on the basis that IFP stickers hadn't arrived, places like ... in North West would have exploded because the IFP wouldn't have gotten three votes there anyway. It would have been taken as a clear sign of electoral fraud. Similarly in some parts of Northern Province where they eventually, I've got the figures here, I don't think they got 5000 votes in the whole of the province. There were a number of voting stations where the stickers hadn't arrived and we said, carry on.
POM So what was done for, facility to write in?
JK We said write in. What we then did was subsequently we checked the voting stations where the stickers hadn't arrived against the voting stations next door and in the same area where they had arrived and on the East Rand we made special allowance for places next to compounds and we did a comparison and we had the auditors do us a check to see whether there was any discernible disturbance in the incidence of the vote in the other areas. If you don't believe me, God's a South African. We had decided in advance that we would make some kind of allowance under Section 40 or whatever it is, I can't remember, for that circumstance and it turned out that we didn't have to make any allowance for it because there was no discernible loss in support as a result of this. There were insignificant write-ins. The major complaint from the IFP was that there were no stickers on the ballot papers at the foreign voting stations. That happened to have been in terms of the agreement. We said to them on the Tuesday before the election, there is no way that we're going to get the stickers to Timbuktu or wherever.
POM But they never raised an objection that ...?
JK They agreed that it would be a write-in.
POM They agreed?
JK Oh yes it's in writing. I've got the contract.
POM Coming closer to my point. So we have a process going on where you're dealing with problem after problem. Some of them look seemingly insurmountable, a way must be gotten around them. All the key political decision makers also know the consequences of there not being a result that is acceptable to every side and to the population at large, therefore the decision-making process is one of consultation between the commission and the political elites and the two of you more or less operated in conjunction with advice from each other and in exchange of opinion and ultimately agreement for the most part on the way forward with regard to each decision.
JK That's correct.
POM So when you look at each decision that was made by the commissioners during that period of time, it was a decision that was made with for the most part the full backing of most if not all of the key political players?
JK Certainly. If I can put it in the image that we had at the time. The political parties are the players in this game. We are merely the referees and/or the Jockey Club organising the race. If the runners are happy with the conditions we run. If the runners are not happy with the conditions we decide whether the objections are well founded or not and we run or we don't run. And that was done from the voting station to the counting station to the collation to the ultimate commission level. At all stages agreement; super. If there is agreement from all concerned it goes and I think any election in the world works that way. If the party likely to be prejudiced says go ahead, well it's a foolish Presiding Officer that goes to court instead of resolving the issue there and then. But be that as it may, one thing I must tell you, that on the night of the 5th, 6th May, that's the night before we announced the result, that night I had a threat from lawyers on behalf of the ANC, the IFP, the DP and the NP that they would bring urgent court proceedings to stay the announcement of the result. That's not technically correct. Lawyers on behalf of the ANC, NP and DP. IFP did it through their own representative there. They didn't have lawyers so they were maybe one step further away from court. And my response to all of them was, produce evidence and we will look at it, absent evidence we're announcing the result as soon as we're finished. The record speaks for itself. Nobody proceeded with the applications. I don't think they could produce evidence. We certainly couldn't produce evidence of irregularities of a scale likely to have had any effect.
POM Are you aware of any consultation that went on between the political parties themselves at that point, where there was agreement among them that none of them would challenge the result?
JK Oh, I'm very much aware of consultations among the parties and they very much agreed to disagree. There was no deal done. Cyril Ramaphosa and Roelf Meyer were at loggerheads with one another. The concept that was put out by the Weekly Mail that there was a deal struck is a total canard, it is out of reality with the facts entirely and in fact a compliment to the IEC in one sense to our competence, of course an insult to our integrity. But to think that we could have juggled the figures countrywide in a couple of hours at the last so as to get just the mix that the parties had agreed upon is ludicrous beyond any description. The results are the results as they came.
POM You were saying that the results were counted as they were.
JK Exactly. We called the game exactly as we saw it.
POM But this is the miracle result?
JK I'm not sure that it's all that of a miracle result. I think it would have been a little bit better if some of the other provinces had been a little bit closer. I think that if in this province where we are now, Gauteng, if some of the opposition parties had got more votes it would have been a better result. I think it would have been a better result if in North West there had been more dissension votes than there were, and in North Province. I don't think it's good to have 85% and 90% in favour of one party.
POM But if you look overall?
JK Overall of course. 64%.
POM Everyone comes out - my point would be that despite all of the difficulties, the deficiencies in the process, the technical obstacles you had to overcome, you come up with an ideal result in this sense; that there was no loser, everybody was a winner. It was a non-non zero sum game. ANC gets a majority, a large majority but not quite the two thirds, so that keeps all the other parties happy. The IFP gets KwaZulu/Natal which keeps the IFP happy. It doesn't make the ANC that happy, in fact President Mandela had to - Harry Gwala was prepared to go to court and claimed that the whole exercise there had been fraudulent, or so he said to me a couple of years ago.
JK I don't think it was Gwala, I think it was Zuma.
POM Yes but Gwala said it himself, but it could have been Zuma. But they were dissuaded from doing so in the interests of let the results stand.
JK They would have lost. They would have lost their court case. There's no doubt about it. It was sound legal advice quite apart from good political advice. I know, I saw their petition, I've still got it in the IEC offices. It doesn't get off the ground. It doesn't make out a case of fraud.
POM And the National Party comes out a winner in terms of it secures the Western Cape and does more than respectably in terms of its overall share of the vote and its participation in the, or allocation of Cabinet portfolios. I suppose my question would be, I do believe in miracles, but doesn't this seem like a little too good to be true, that everything worked out so perfectly? If one looked at the alternative, let's say the ANC had gotten more than two thirds you would have had objections from the other parties given the number of difficulties that you had gone through whether technical, administrative or whatever. In other words they would have relied more on legal grounds than anything else.
JK I'm sorry, I'm just a lawyer. I can't talk in hypotheticals.
POM That's what the politicians say to me.
JK Well they may say it, I can't argue it. I can tell you that when I left our counting station at about three o'clock in the morning the ANC had 65.9% and was rising. I went across the road to the hotel, I couldn't sleep I was so worried at the thought that they were going to get two thirds and they were going to be scared out of their minds by it.
POM Or everyone else was going to be scared out of their minds by it?
JK The ANC. I don't think that it would have done them any good to get two thirds of the vote and I have reason to believe that there were wise people in their ranks who didn't want two thirds. Anyway, I went back at about six o'clock in the morning and it had dropped to just over 65% and it came up again to 65.7% and then some of the Durban Showground votes started coming in and then the Pretoria Showground's votes came in and brought us to our ultimate final figure of whatever the percentages are. And those were the figures that came in. Now anybody who says it's too good to be true must go and talk to the guys who were there counting the votes. They must talk to Aitken & Peat, to Coopers & Lybrand, the auditors that we got in the moment we thought that there was hanky-panky with the counting and that was on the Tuesday night. Maybe whoever did the deal, did the deal without my knowing about it, without the United Nations expert supervising knowing about it, without any other commissioner knowing about and kidding all of the auditors, or having them all in cahoots. Otherwise it cannot be a cooked deal.
POM But if all the decisions that were made during the counting process ...
JK But these are decisions taken by hundreds of different people at different times and different places. You're postulating a com-plot between all of them.
POM No what I am saying is that you said if things are acceptable to the jockeys, those that are running the course ...
JK And the owners and trainers.
POM - then you run the course. And here you had a situation of where in terms of the procedures followed to arrive at a result, all the major players agreed on the procedures where there were difficulties or discrepancies or whatever, and then the results that come up are exactly the kinds of results that would be acceptable to them all.
JK They were results that four of them were prepared to go to court on the Thursday night, and threatened to go. They were that unhappy on the Thursday night.
POM That was before the results were announced?
JK On the Friday morning the results were announced. That night, that night the DP dictated and my secretary typed out the letter of demand for them because their typists had gone to bed, I think it was half past eleven at night.
POM It produced a result that resulted in stability, acceptability.
JK Why do you put it that way? I don't want to argue with you, you've got a thesis of your own. I'm telling you that we had basic stability built into our society, we just didn't realise it. That's why people were prepared to stand for hours and days in sun and rain to vote. That's why IFP and ANC and DP and NP stood next to one another and offered one another drinks from their thermos flasks. That's why the white terrorists eventually gave up and went away. And it's because just over 60% of the people support the ANC, just over 20% support the National Party and they control one province precariously, the ANC controls another precariously, they have all got to play the decent game. I don't think it's the election result that gave us the stability. I think it's the stability that gave us the election result. It was because the people basically were tired of war and they wanted peace and Mandela has been a miraculous leader. Were you here for the inauguration? I think that you had to be a really very dedicated ideologue not to have been moved that day by some sense of solidarity. You know that the hospitals in Pretoria had all been vacated, all of the hospitals in downtown Pretoria. I went to go and visit a friend there on the Thursday before with a very badly fractured leg, he had to move on the Saturday. I went to go and help carry him down because they were clearing all of the hospitals because they were anticipating massive disturbances. It was the quietest day ever recorded in any casualty department in any hospital in Pretoria in the result. We came of age.
POM Let me put it in a slightly different context.
JK You want to be the cynic and I don't want to be the cynic.
POM It's my profession.
JK It's my profession to be the cynic as a lawyer. I happened to witness a miracle.
POM As a writer I have to be a cynic too, even though I was a witness to a miracle.
JK I just don't like cynics with a touch of the brogue. They don't go together.
POM Maybe we know too much about how often the dead vote not to be cynical about voting.
JK Yes, the gift of the blarney.
POM In the early eighties maybe beginning with the elections in the Philippines you had this emphasis on the international community observing elections and declaring them free and fair. Is it more important, and I'm not saying the two are exclusive, to produce a result of an election that is acceptable to all the political elites that results in stability, order, continuity and results that are accepted as being legitimate rather than pursuing results that are classically free and fair in the terms in which you refer to them yourself in your report by saying that if you adhered to the letter of the law then ...
JK No. You're putting to me a bogus proposition and I won't buy it.
POM OK, which is?
JK Technical correctness is not equal to free and fair. The Mexicans had technically hyper-perfect elections. They were not perceived by the electorate and they were in many places de facto not actually free and fair. They went through all of the motions and they had perfect voters' rolls and perfect identity cards and the whole works but large blocks of people didn't go and vote because they were afraid. We had none of that. So don't give me the technically correct as free and fair. They are not equivalent.
POM I'm giving it in the context, say, of divided societies whether they are divided by race, by colour, by religion, by language or whatever, is that you can have a technically correct free and fair election in which one section of the community, a minority, simply won't accept the outcome because it strips them of all power.
JK Because the political process is not to their satisfaction. Certainly. I think you had technically perfect elections in the Soviet Union for decades, not one of them was free and not one of them was fair. We had a materially flawed election of national reconciliation in which I am satisfied 80% of the people voted. Anybody who wanted to vote and was prepared to put up with the bother could have voted. There was no material disenfranchisement. We managed to register 3.7 million people in the last couple of months. There were no reports of major turn-aways from voting stations of people who couldn't get to vote. There were no reports of major impediments to getting to the ballots and there were no reports of major double voting. I say that that is a free and fair election. You don't like the result because it's too good.
POM So if you go to KwaZulu/Natal, if you go to the ANC they will all swear on a Bible to the last person that the election was stolen from them.
JK No they won't.
POM And if you go to the IFP ...
JK No they won't. They will tell you that as a journalist, but if I sit down with Blade Nzimande and I say to him, Doctor, let's go through each one of the voting stations you complained about and how many of them eventually turned out to be pirate? Zilch. The problem being that they had the Government Gazette of the Monday and not the Government Gazette of the Tuesday because the IFP came in at the last moment and those voting stations were only proclaimed on the Tuesday, on the Monday night. They know they made a cock-up in their application. That's why they withdrew it. It's not because Zuma is such a hero. That's a cost and benefit exercise that they did. Don't give me that one, don't tell me that every IFP man says that they were swindled. Buthelezi will talk big talk about his going to go to the polls so that he can get himself a two thirds majority because he's not going to be crooked by the ANC in the disguise of the IEC as last time around. And the ANC is going to say that they were stolen blind in KwaZulu. You were there. Where were you?
POM The IFP says they were stolen too.
JK Yes I know. They both complained. But where were you?
POM I saw nothing irregular.
JK Right. We had I think the shrewdest monitoring department ever. It was grossly over-staffed and over-manned and over-equipped. That's one of the reasons why the EAD very nearly ground to a halt because all of the smart guys and all of the equipment was in monitoring. Peter Harris ran a superb outfit and what did his department come up with? Nothing of any consequence. One case in the Eastern Cape. I am not saying that there weren't a hell of a lot of others but I am saying provable and proven; zilch. But let me make a point to you which you may or may not take, if you take one of the cases that was reported in Ubombo where the local Induna, the local headman sat in the voting station and reminded everybody how they should vote, now that's a major electoral offence. It's a major impediment to free and fair voting but we don't happen to have a mix of about 60/40 between Democrats and Republicans with a floating vote in between in Ubombo. You've got a 99% IFP vote anyway. We had in the Transkei particularly in the northern areas near the border with KwaZulu/Natal ...
POM So those votes would be counted as legitimate votes?
JK Yes. We counted them. What's the alternative? That you say to the 3000 people who voted there, because there was an IFP man there, we don't know to what extent he influenced the vote but it's likely to be trivial anyway, but we're going to disenfranchise you.
POM I suppose my point goes back to the one that you yourself made earlier, is that if many decisions have to be made against the background that an alternative decision could result in a lot of violence and a lot of loss of life, then you have to modify the criteria by which you make decisions because it becomes morally the better thing to do.
JK I'd like to agree with you but I can't accept that motive equals crime. We had every motive to accept and to gerrymander and to finagle, of course we did, but we didn't do it notwithstanding the motive. And I'm telling you we didn't have the means to do it and there is not a tittle of evidence that we did it and therefore the motive theory is very good, but it doesn't wash. Like it or not the results are 90% or better correct and I say that makes no earthly difference to the country and therefore I as a judicial officer was prepared to say substantially free and fair. Not technically correct. I told the people frankly, technically bad in many places. Technically good in most places but technically bad in significant numbers of places. Let's go back to percentages. We talk about the major breakdown in the logistics of the ballot papers. By lunch time on the first day 84% of the voting stations were up, running and functioning 100%. That is 8550 voting stations with guys running them who had never run a voting station before and were running with a little Primus stove to make coffee and a Coleman lamp to give them light. Now I think that is a damn fine effort, but there were 1600 that were lousy, that weren't running and that means that there were half a million people who had their votes endangered. That's bad. But even if they had not voted at all, if we hadn't had the extra voting day, I don't think it would have made any real difference to the ultimate result. The ANC may have had 60% because most of the votes that came in were North Province and North West Province, but a lot came in from KwaZulu so the IFP scored a little, North West scored heavily as did North, but those are the three that really succeeded, and some Transkei seats, not a hell of a lot.
POM But if you had, and this again is hypothetical, because what I am trying to get to is are there different criteria that must be observed in what one would call more homogeneous societies, even like the United States where you have an established political system with a tradition behind it or Britain or France or Germany or whatever.
JK No doubt about it.
POM Rather than a country like South Africa or Northern Ireland where there are deep cleavages between different sections of the population and where the sharing of power or the distribution of power becomes maybe more important than the actual tally numbers themselves?
JK I think as a political philosophy I would go along with that although I don't think that the election results can determine your desire to co-operate and to reconcile and to bring about national unity instead of dissension. I think that the desire to do those things must precede the elections. If the elections then happen to reflect them or support them, good and fine. I think that the kind of result that they came up with in Quebec is a disaster, it's a tragedy. If we had come up with that kind of cliff-hanger here it would have been very, very bad indeed. But on the other hand you can't make unity out of a gerrymandered election, it's not going to work. If the majority of people or a substantial minority of the people are sufficiently unreconstructed irredentists you're not going to get unity at all. I also think, I'm talking outside my technical electoral area, I also think that you need, or we were blessed with, and if you want it to work again elsewhere, you will need leaders of great quality, courage, statesmanship, determination, wisdom. I don't see them on the Irish scene unfortunately and the Belfast scene. I have started to see them in the Middle East, yes. They don't exist unfortunately in Bosnia Herzegovina, Serbia. We've got them and may they survive a little longer.
POM So, finally I suppose, what could a country like Northern Ireland or another divided society learn from the manner in which these first elections were conducted?
JK I've written that in the report already. If there's a will there's a way. If you've got the political will you can get there. Absent the political will you're not going to get there. The will and the leadership. I don't suppose it's the kind of note on which one should end but I want to make two observations. One is, if we could settle and come to terms anybody can because we had damn little going for us. And secondly, if our elections with our handicaps and their manifest shortcomings could work and be accepted, anybody's can. If we can do it politically and we can do it electorally, anybody can do it.
POM Can I ask you one last question and it goes back to KwaZulu/Natal, and the question of who stole what from who. Now whatever the facts, the ANC supporters in KwaZulu/Natal will say the election was stolen from us and whatever the facts IFP supporters will say, we should have gotten a much larger majority than the bare 50.2% of the vote.
JK We was robbed.
POM Yes, 'we was robbed'. Both sides say 'we was robbed' and both sides believe it and both sides are encouraged by their political leaderships to believe it creating an atmosphere which will make it much more difficult to conduct local elections there next March since people will already have perceptions of how they should do or not do based not on reality but based on propaganda. Where is the responsible leadership there?
JK I don't think I can comment on that one. It's way outside my area of responsibility.
POM But you say strong political leadership, wise political leadership is a pre-requisite.
JK That's what worked last time round. Why not? I think that it's over-simplifying a very, very difficult situation. I think that if they manage to hold local government elections in KwaZulu/Natal in March or any other time next year it will be a very, very singular achievement. I think that there are very, very deep historical divisions, many of them unrelated entirely to ANC/IFP competition, many of them exploited one way or the other, either the warlords exploiting the politicians or the politicians exploiting the warlords or the local power brokers or the local controllers of the best grazing or whatever. It's a pitifully poor and over-populated and over-grazed area generally rurally and in the peri-urban areas there is no visible means of support for most of them. The fact that it is not in a greater state of civil war at the moment is quite remarkable. If they can maintain this current level of quiescence and manage to run elections there I will sing Hosanna for a week. I don't see it happening. When you talk about political leadership, and it being implicit in what you're saying that the political leaders are actually inflaming instead of pacifying, you may be right in what you're saying but that's a relatively insignificant level. The level of animosity is so great that that kind of political folly, if it be there which I think it is, is relatively unimportant.
POM Just on that last note. Over the years I have taken a particular interest in Thokoza, particularly with the hostel dwellers and particularly on Khumalo Road itself, and I went there on election night and was interested to see that in areas like Phola Park which were solidly ANC, there was no IFP candidate on the ballot but they were there for the proportional part but not for the ward part and vice versa in strongly IFP areas there would be no ANC candidate. And I was told frankly by both sides that if you are a member the IFP in an ANC stronghold you simply don't go around advertising the fact and you certainly don't put your name on the ballot. Will that situation not be exacerbated in KwaZulu/Natal now that people will be fighting over smaller pieces of territory where to reveal oneself may in many instances be a death sentence on oneself?
JK That is certainly so and it's even more so than it is in Thokoza and Vosloorus or some parts of Soweto used to be like that until the ANC had taken complete control, but there's the further very, very serious complicating factor in most of KwaZulu/Natal outside the central urban conglomerates and that's the traditional against the political leadership and it's not only an ANC on the one hand and an IFP on the other hand competition. The tensions within Contralesa have shown us that there is very real tension between who runs the show; the local mayor or the local traditional leader, the headman or the elected political figure? I can see very, very major difficulties evolving in that respect. I hope they come to terms with them and I think that the ANC has probably got strategies to deal with it in the areas where they have control. Good luck. It's not an easy one. It's not a problem that's been solved anywhere in sub-Saharan Africa yet where there are competing tribal and political forces. You know a place like Swaziland, a place like Lesotho, a place like Botswana, they are homogeneous not only ethnically but tribally, but even in Botswana you find that up towards the north towards the swamps way where you've got a largely Pedi speaking anachronism they are a potential irredentist ulcer in Botswana. Zambia is a very good example, Zimbabwe is a good example. We haven't solved that anywhere.
POM So for many years, I remember coming here first, if one talked about tribal elements in politics it was political heresy, it was just politically incorrect. You did not say it, you seemed to be some kind of apologist for apartheid and therefore people didn't talk about it. Do you think that now the cover is coming off issues like that and they must be dealt with?
JK Yes and I think it's healthy that they come off because PC is perfectly all right if you're doing it not to hurt people's feelings but if you're being politically correct and you're bamboozling yourself at the same time that's folly. There are distinct differences. Let's recognise them, let's honour them, let's live with them. Mr Mandela is the man that he is because he comes where he comes from. He had the respect of people because he respects them for what they are. He doesn't expect me to be a Xhosa or some sort of a pale blend of Tutu and Eugene Terre'Blanche. We are what we are but we've got more that binds us than that which divides us.
POM That's a nice note to end on. Thank you ever so much for your time.