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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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

12 Mar 1996: Omar, Dullah

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POM     Most of my questions are going to be about the Truth Commission. The National Party and others say that 77 members of the ANC were given blanket temporary indemnity from prosecution without disclosure when they were allowed to return to South Africa in 1991 to take part in negotiations. Now my understanding is that this temporary immunity has to be extended by parliament on an annual basis and that it will end one year after the Truth Commission begins its deliberations. What is the actual legal position with regard to members of the ANC who were granted temporary blanket immunity?

DO     There is really no problem whatsoever. The temporary immunities were extended by the National Party government whilst members of the ANC were still outside the country in exile at a time when their coming into the country could have resulted in police action against them for all sorts of things. And so to enable ANC personnel to come into the country to facilitate the process of negotiations and to ensure that those negotiations can take place without the sword of possible arrests hanging over the shoulders of people, in other words to ensure that they can negotiate freely, that temporary immunity was extended to them. In other words in terms of the indemnity act at the time those temporary immunities were extended for the purpose of participating in constitutional negotiations and towards finding peaceful solutions. That was the context in which those temporary immunities were granted. Those temporary immunities can never be used to prevent people from appearing before the Truth Commission for any matter whatsoever so there is no problem with regard to the Truth Commission itself.

POM     So is this a red herring that the National Party is throwing up?

DO     It is throwing up a red herring for all sorts of party political gain and in fact not a single member of the ANC will rely on temporary immunity in order to deal with the current situation. Secondly, ANC members will not rely on temporary immunities for any matter whatsoever, even with regard to possible prosecutions. The National Party keeps on saying that they are being indemnified from prosecution. No ANC member will rely on those temporary immunities to avoid prosecution. All ANC members are prepared to go to the Truth Commission and to testify in public.

POM     So again, we hear an awful lot about even-handedness in how the commission must operate, what is your understanding of what even-handedness means?

DO     There can never be even-handedness in an approach to what apartheid was and those who participated in activities of whatever kind in pursuance of apartheid and to enforce apartheid on the one hand and the liberation struggle on the other, the struggle for democracy and the activities of people who participated in the liberation struggle. There is no moral equivalent between apartheid and liberation.

POM     I was just going to give you your quote because I wanted to ask you a question on that. You said, "There is no moral equivalence between the actions of the apartheid security forces and those of the ANC guerrillas. Apartheid has been a crime against humanity in the same way Nazi crimes are crimes against humanity. People who fought for freedom in our country, who fought for democracy were participating in a noble struggle." That raises all kinds of problems in terms of the context in which the Truth Commission is set up, does it not?

DO     It does not raise any problems to my mind. To my mind that historical context can never be altered by law, that is an approach of international law and I think international human rights jurisprudence. No law can change morality. The morality of struggle for justice, the justness of the struggle for liberation, the immorality of apartheid and its inherent illegitimacy are matters which no law can change. In other words morality is not dependent upon a single law. The morality of the justness of the struggle and the fact that apartheid was a crime against humanity preceded the Truth & Reconciliation law. The law itself has not wiped out that moral approach. What the law has to do, and the application of that law, is to recognise that it operates within that broad context. Now within that context therefore the commission must ensure that it treats individuals on an equal basis. There is no question about that. Our constitution says that every person who has committed an act associated with a political objective which represented an offence in terms of South African law would be entitled to apply for amnesty. Contextualising the struggle and what happened in our country does not deny individuals that right to be treated on the basis set out in the constitution.

POM     That is South African law as it existed under the apartheid regime? So you're taking their law and judging them in a sense using their standards?

DO     Well the reality is that when you apply for amnesty you apply for amnesty from prosecution or in respect of convictions in respect of laws which were in force in South Africa at the time. Because we did not have a revolutionary victory in our country but a negotiated settlement which led to the adoption of a new constitution, that is the form that amnesty is taking in our country. Now it is precisely for that reason that the morality of the situation has to be stressed all the time. If we do not do that then it seems to me that we will be legitimising something that could never be legitimised throughout the years of apartheid. It is going to be a sick irony if apartheid, which could never be legitimised while apartheid was alive, gets legitimated after its death.

POM     Now how do you equate in the context of what you said, how would you equate the case of, say, Robert McBride who left a bomb in the Magoo Bar in Durban in 1986 which killed three women and injured scores of others and Dirk Coetzee who has admitted to 27 crimes including six murders, which included I think three children, to breaking and entering, just to about every crime in the book, who is now working for the National Intelligence Agency, in fact he's working for you?

DO     Well he's not working for me. I happen to be the Minister.

POM     That's what I mean, the NIA comes under the Justice Ministry.

DO     But I think that we must not equate matters on a simplistic basis though I must say that I am concerned about human life and I am particularly concerned about civilians who become victims. Clearly people who were sitting in Magoo's Bar were innocent victims, they were civilians. The difference though is that Coetzee targeted specific people. I have no indication whatsoever nor does the evidence which was led in McBride's case indicate that he targeted those specific persons. There was no specific target of civilians, the specific civilians who were killed in that instance. At the same time having drawn that distinction I do think that it is not a matter which should simply be dismissed. If a liberation movement targets civilians then it is not such an easy matter to explain in terms of the morality of struggle. Civilians during the course of struggle ought not to be targeted, in my view, though I do not want to prejudge what the Amnesty Committee or rather the Truth Commission would have to deal with and grapple with. I think that what one is doing here is to use extreme examples. The case of McBride is an extreme example.

POM     I suppose what I'm getting at is the larger question and you've touched on it. How would you distinguish between an individual or individuals who on the instructions of the state target specific individuals who they think are a threat to the state and murder them, and people who fight in a liberation movement and randomly kill people by leaving bombs in places like bars or restaurants? Probably Algeria would have been the classic example of that kind of guerrilla warfare.

DO     Well I do not know whether one can call that randomly killing people. If what the operative did represented part of a campaign of a liberation movement in circumstances in which it was very difficult for that movement to operate, to make its message heard, I do not think one can call that random. I find that a very difficult area personally speaking.

POM     Leaving a bomb in a restaurant and walking out is not random killing?

DO     Well I think it is a difficult area. If I myself had to be in any command position or having to decide something I would not do such a thing. It goes completely against my grain that innocent civilians should suffer. But I do not want to pre-empt what the Truth & Reconciliation Commission will say about that. At the same time I think we ought to understand what the apartheid regime was doing at the time and that context also has to be understood, a situation in which people had no rights whatsoever, no freedom of expression, no freedom of assembly, tremendous repression in the country, many people being killed by the apartheid forces both inside South Africa and outside South Africa and the regime adopting all kinds of methods in order to destroy the democratic struggle. I think that that kind of context needs to be taken into account. I do not know whether that would justify targeting civilians even though specific individuals have not been targeted. I still find it difficult to accept though I think that one can never equate what a liberation movement has done with the crimes of the apartheid regime.

POM     Would that even apply to the case of where the state again instructs security police to kill specific individuals and where people's courts ordered the necklacing of specific individuals?

DO     I think people's courts must be seen in a different light because normally people's courts were directed at collaborators of the regime. Actions against collaborators have been known to take place in all parts of the world. In the resistance movement in Europe action was taken against collaborators. I find the necklacing method a heinous method. I can understand actions against collaborators. I do not approve of the method. I personally find the necklacing method to be abhorrent and find it unacceptable and I hope that it will never recur in our country. The security forces of the country and state operatives were doing what they did in pursuance of their objective to maintain the apartheid system and to prevent the democratisation of South Africa. They were participating in a crime against humanity. That is the first thing. I believe that a crime against humanity per se is a gross violation of a human rights. Secondly, in addition to that context their targeting of people did amount to a gross violation of human rights, completely unjustified because people were fighting a just struggle against apartheid and for democracy. That is my broad approach.

POM     How can you give amnesty to people who have committed crimes against humanity? I want to put that in the context of the Bosnian War Tribunal. How would you draw parallels or distinctions or contrasts between the War Tribunal set up to judge crimes against humanity in Bosnia and the Truth & Reconciliation Committee set up to investigate in large measure crimes against humanity in South Africa?

DO     The Truth & Reconciliation Commission must be seen in the context of our constitution. The constitution contains a provision which prescribes that there shall be amnesty for acts associated with political objectives which constituted offences associated with the conflicts of the past. So there is a constitutional prescription. That constitutional prescription and the constitution itself form part of a total political and constitutional settlement in our country in order to end the conflict and to put our country on the road to democracy. So without that total constitutional package which included amnesty there would have been no settlement in our country and there would have been no democratic elections. So it was part of that kind of package and it is in the context of that package that this amnesty provision must be seen. The Truth & Reconciliation Commission process is a mechanism designed on the one hand to implement that particular constitutional prescription. The reason we've opted for a Truth & Reconciliation Commission was firstly that to proceed with a law which simply grants amnesty would have taken care of perpetrators. It would have sent the wrong signal to South Africans that you can commit very serious crime and get away with it. It would have made it difficult for us to establish the rule of law, such an approach would have been morally unacceptable to our people, that people who committed terrible crimes are simply amnestied. But because the constitution provides for it we have tried to devise a procedure which would ensure that amnesty is not cheap, that accountability is maintained, that individual accountability is retained and that the process and mechanism created requires disclosure, criteria are created, there is nothing arbitrary about it, in an attempt to ensure that it is morally acceptable. But secondly, the Truth & Reconciliation Commission creates a separate process to record human rights violations in our country and to require the commission to investigate human rights violations which is separate from the amnesty process. And thirdly, because amnesty takes care of perpetrators and completely ignores victims, there is a third process provided for and that is to get the victims to tell their stories and to ask the question, what can be done to restore the dignity of victims and to provide reparation where possible? In other words we try to ensure that there is as much justice as possible within the framework of the constitution.

POM     Now people, let us say members of parliament or even ministers for that case, who go before the Truth Commission and applied for amnesty and were granted amnesty, they are not required, are they, under the present law to step down from public office?

DO     They are not required to step down. I think that because the commission will be operating in public and much of the hearings will be in public, part of the morality which develops as the commission goes along, part of the way that public opinion shapes itself would determine whether people will be able to retain office or not. A legislative prescription in itself does not resolve the matter one way or the other. I think that as we develop public opinion, the rule of law and morality in our country, it is going to be very difficult for a person who is found to have committed gross violations of human rights to occupy positions of responsibility.

POM     How do you measure, and I am only using this very, very hypothetically, in the most hypothetical sense possible, if evidence emerged that De Klerk or a very senior person in the National Party or very senior people, political people in the National Party were involved one way or another in ordering or condoning or knowing about violations of human rights, and if bringing them before the Truth Commission could result in instability in the country or a backlash? At what point do you draw the line between the need to know the truth and the need to maintain cohesiveness and unity and stability in the country itself?

DO     If we have to suppress the truth of the role political leaders have played in suppressing other people in the killing or torture or disappearance of others, if we have to suppress that kind of trust for the sake of stability then I would question the nature of that stability. I do not think it's a kind of stability which would make the new South Africa different from the old. If the new South Africa is to be different from the old you may have to create some instability but to manage that instability in a way which would re-establish stability on the basis of the rule of law and morality. At the same time I do not think the mere fact that you charge political leaders results in instability and that therefore you must be paralysed from taking action. There are other countries in the world that have acted against their highest political leaders. Nixon found himself in such a position. In Italy people occupying high office have been charged with serious offences. The former Minister of Defence is on trial in South Africa at the moment. There was a time when some people said that you cannot touch such persons and charge them with offences. I think that the South African public will accept that where there is evidence that people in high office have committed serious crime or are alleged to have committed serious crime and they are charged, that that is the correct course to follow. The sun has continued to rise every morning and set every night while Magnus Malan has been appearing in court. Some people have been very unhappy. It has resulted in no instability in our country. On the other hand I think that the world has seen that to reflect a determination on the part of authorities in our country to clean up our situation.

POM     Again, this is speculative, hypothetical, but if you were the one to make the judgement call, let us say that Chief Buthelezi was implicated in the Malan trial and ought to be indicted and the consequences of that had to be weighed against the violence that might result in Natal between the IFP and the ANC, should the possibility of that violence be a consideration in whether or not you should take action against Buthelezi or should it not be?

DO     There is already a great deal of violence in KwaZulu/Natal. The threat of violence should not be allowed to blackmail the law enforcement agencies in our country and our judiciary from acting in the way they should in a democracy. If we allow that kind of blackmail to deter law enforcement agencies from acting then we are setting a precedent which will cost the country dearly in the future. I think it is much more important that the country sets an example now that where there have been serious crimes and there are serious allegations against persons no matter how high in office they are, they should be prosecuted. Every human being must be held accountable for his or her actions no matter what office such person occupies. Unless we establish that principle then it means we are not establishing the basis for the rule of law in our country. The essence of the rule of law in our situation is that of accountability. If we are not going to apply that principle because of one or other form of blackmail then I think we are abdicating our responsibility.

POM     Now the Truth Commission isn't required to grant amnesty. It can hear the person's 'confession' and may decide that because of the heinous nature of the crime that it will not grant amnesty. Is not the fact that that person has admitted to the crime, does that make it almost impossible to prosecute the person on the grounds of double jeopardy?

DO     No not at all. The proceedings before the Truth Commission do not constitute a trial. The commission cannot find a person guilty, nor can it sentence a person, and therefore there is no double jeopardy.

POM     But I am admitting to a crime so why is there a need then to prove it in a court of law. If I have already admitted to it one doesn't have to go through the standard procedure of producing witnesses and whatever. One can say you simply went before the Truth Commission, you said you were guilty of six murders, you weren't granted amnesty, we're prosecuting you and you're guilty. You've admitted your guilt and you've got a life sentence and that's it.

DO     You see we did have to create a procedure for amnesty. That is the procedure which has been agreed upon, namely that a person can apply at any time. Of course a person has to apply within a period of twelve months from the law coming into operation.

POM     The law coming into operation, which was before Christmas?

DO     Yes. It then means that any person who wants amnesty must apply within that twelve month period.

POM     Up to December next year?

DO     If such person does not then the right to amnesty falls away. But let's assume a person applies within the twelve months, there are criteria to determine whether the act was an act associated with a political objective. If we did not have criteria of that kind then it would have meant that people received automatic amnesty, blanket amnesty. The disadvantage of that would have been not that people who should be prosecuted will not be prosecuted. The disadvantage would have been that it would have sent a wrong signal to society that everything committed by persons irrespective of whether those acts were acts associated with a political objective or not are simply going to be amnestied. We could not have that kind of situation. We had to have criteria in the law to determine whether an act was an act associated with a political objective to distinguish between offences for which amnesty could be obtained and those for which not. Otherwise any common law offence, any murder, any robbery for that matter, because how many robberies for which people are asking for amnesty, would qualify for amnesty, we would have a state of lawlessness. So it may appear as if a person whose application for amnesty is refused faces double jeopardy but that is really not the case. It's one of the inconveniences that we have to live with that a person has to go through that process. If amnesty is refused a person is liable to prosecution. I do not believe that a person is subject to double jeopardy.

POM     Say I'm a senior political figure, I have to weigh my participation or my knowledge of crimes committed against whether or not I will get amnesty if I confess or whether I will be denied amnesty and prosecuted and I might take my chances when I will be prosecuted, people will be tired of this after two years. Do you know what I mean? It's almost like a gamble. Which way do I save my skin?

DO     I think there is no perfect answer. In a way the answers which we have devised and the procedures are not entirely perfect but it's the best in a very contradictory situation. The alternative to that would have been to grant amnesty to everyone who applies. That would have meant that everybody applies who has committed all kinds of crimes, there would then be no point in having any kind of process or procedure at all. It would be a free for all, it would be legalising what was lawless and that would have been the road to disaster. So the alternative was just completely unacceptable. So going through the commission process and then finding yourself charged may be an inconvenience but if you have committed an offence of a serious nature which had no political objectives and you take a chance, try to get amnesty for it, it's not much of a price to pay having to face a trial.

POM     Now truth and reconciliation, the two are not necessarily compatible, one doesn't necessarily lead to the other and there is already in the white community, and again said by the National Party and much of the press, that the Truth Commission will deteriorate into a witch-hunt, that it's out to get one side, it's out to prove that they don't take the concept of the morality of the thing into consideration at all. They see it as this is kind of the revenge factor on how they are going to be got. So what are the mechanisms that will lead from the truth being revealed to the emergence of reconciliation, to healing if one community believes it's aimed almost exclusively against them and they perceive themselves to be the new victims?

DO     I think that those who are guilty of apartheid crimes, those who supported the apartheid regime who now raise this kind of point, display gross ingratitude to the generosity of the liberation movements who agreed to amnesty as set out in the constitution. They are also being completely subjective and have no interest in real reconciliation. To them reconciliation means forgetting what took place in the past, not opening the wounds, as they would call it, forgetting that the wounds are there, the wounds do not have to be opened, the wounds have never closed. Their interpretation of reconciliation would imply that no change should take place, there should be no transformation, that there should be no social and economic change because we already have political change. You've got some black faces in office, why do you people persist with all sorts of other things? I am linking the moral transformation, the legal transformation, with social and economic transformation and I think there can be no reconciliation unless it is so linked. Reconciliation will be short-lived unless it is properly dealt with.

POM     Just a couple more minutes of your time. Just to switch matters. I am still talking about morality in a sense. The Kenyan mediator, Professor Okumu, over the weekend made a statement which he said, "I think morally Mangosuthu Buthelezi and the IFP have a point when they feel betrayed and whether you like it or not that is the issue. Once an agreement is signed and it gives certain undertakings surely those undertakings should be adhered to unless all the three signatories say that the agreement is no longer valid."

DO     What agreement was signed? What agreement was he referring to?

POM     The agreement between Buthelezi, Mandela and De Klerk.

DO     If he is referring to international mediation there is no question of morality coming in there. It's a question of politics and IFP playing politics of a kind which is very disruptive. Here we have a Constitutional Assembly in which a great deal of negotiations are taking place over a wide range of issues. If you were to break down all the issues there are hundreds of issues in respect of which agreement has to be reached. Ultimately you come to a situation where you can identify those areas in respect of which there is no agreement. To talk of mediation at a time when that process is incomplete and you have no idea as to which issues you will arrive at a deadlock seems to be to be playing political games.

POM     But there is no question that, at least according to Professor Okumu who is credited with brokering the agreement that brought Buthelezi into the April 1994 elections, that his participation was predicated that there would be international mediation on outstanding issues.

DO     Well we are discussing the outstanding issues in drawing up a new constitution.

POM     But do you not think he has the moral high ground? I sit with you and I say I will participate in the election and you say OK and we have disagreements, we already know what these disagreements are, and we agree that after the elections there will be international mediation on these issues.

DO     What issues? The issues have not been identified.

POM     Well the IFP say they have.

DO     No they have not been identified. I am amazed at the Professor's statements. I suspect that he knows he's wrong. I suspect that he's playing political games. I do not accept that that is a sincere attempt to resolve the problems in our country. Look at the reality of the situation. You have an interim constitution which is going to fall by the wayside. There is going to be a final constitution which will provide the new constitutional framework for the country. That new constitutional framework is based upon the many constitutional principles which are set out in the interim constitution. There are so many issues which arise in the process as you arrive at the final constitution and dump the interim constitution. None of the parties know before the process begins what you agree upon and what you disagree upon. You cannot have an approach to constitution making which is not political. You can't say here is a piece of paper, you haven't done this, because the political process is actually dealing with those matters. The political process will determine which are the issues on which you disagree. You have to go through that process to identify those areas unless you are thinking of a separate parallel process of a similar kind, which is completely unacceptable. Here we have a process within a framework of a constitution which determines all the constitutional issues and that is the place where differences need to be identified before you can even submit any of those issues to mediation.

POM     I noticed in The Mail & Guardian in the issue of 16/22 February had a headline, 'OMAR WANTS TO DILUTE HUMAN RIGHTS', and it goes on to say that key elements in the constitution protecting individual rights you want watered down to facilitate the government's fight against crime. You are quoted as saying, "Starry-eyed and over-romantic approach to the question of rights is costing the country too dearly", and you specifically appear to refer to section 13 on the right to privacy, section 23 on access to state information, sections referring to availability of bail, in section 33 on the limitation clause on certain rights. And I went back and read some of the things you had said in Boston where you championed the necessity and the absolute paramount position of individual rights in a bill of rights. Is this a change of principle, a change of heart or a change necessary to deal with reality?

DO     No it's not a change of heart, nor is it a change of views. I believe that those individual rights are very important. At the time that we spoke in Boston it was within a context in which South Africa was not yet a democracy and we had to assert the need to establish a regime in which individual rights would be respected. Now that we have crossed the threshold and we have achieved that situation we need to ensure (i) that those individual rights are protected, but (ii) that they are not abused especially in the context of fighting crime. The context is that organised crime is becoming a greater and greater danger in our country, as it is internationally. There is drug trafficking on the increase, serious economic crime is on the increase, corruption is on the increase and these are threats to democracy and human rights themselves. So in an endeavour to ensure that the human rights of society and all individuals are protected we need to ensure that those who are seeking to undermine the very basis of that society are not allowed to abuse those rights. All democratic constitutions do make provision for a limitation of rights provided that they are within the framework of a democratic order they are consistent with democracy and that is all that I am asking for, to ensure that we have those reasonable limitations. I do not want to take away any rights from people.

POM     Are you saying there are situations where the rights of the community as a whole supersede the rights of the individual?

DO     I think that the rights of the totality of individuals that constitute a community are jeopardised by perpetrators of serious crime of the kind to which I have referred and that where it is in the interests of protecting the well-being of society in that way you must, through a law of general application, have the right to limit some of those rights. The one example which has come up is access to police dockets. The first people who want access to police dockets are those who are involved in money-laundering, drug trafficking who have been charged with those offences and they want access to police dockets at a time when police have not even completed their investigations. There are people who were involved in third force activities in our country who are doing the same. So the question is, how do you regulate and, if necessary, limit those rights in a way which would ensure that people charged with such offences do receive a fair trial, that information is made available at an appropriate time but that the police are not simply on request required to make their dockets available to accused persons.

POM     I just want to take two issues that are constitutional issues. One is the land issue where it appears that the ANC had reached an arrangement with the National Party and the Democratic Party on retention of the property clause and then in view of pressure from its various constituencies went back on that, particularly on the clause that said expropriation of land would only take place at the market value or compensation would be at market value, to be replaced by language that said appropriation will be at prices the government could afford. But it was constituency pressure that required it to change it's position. Yet on the question of the death penalty where a number of polls have shown that a majority of your supporters strongly support the death penalty, the ANC is holding strong on its position that the death penalty will not be included.

DO     I think on both issues your assumptions, or the assumptions stated to you, are wrong. Firstly with regard to the property clause, there has been no somersault on the part of the ANC. The ANC's preferred position is that there should be no property clause and we have said so publicly wherever we went and if we can win support for that position that's the position we would like to go along with. At the same time the issue of property is a highly sensitive issue. It raises many fears amongst people throughout the country. All kinds of fears are whipped up that people will lose their homes, all sorts of things. There isn't sufficient understanding amongst people as a whole as to the implications of a property clause and that property does not only mean immovable property, houses, that there are so many other things involved. So whilst our preferred position has been and remains that there should be no property clause we have to live with existing reality and if it is necessary that we need to make a compromise on this then we would want to ensure that there is adequate provision for land reform to take place and for the injustices of the past to be dealt with. It is a difficult area but that is the position the ANC has adopted.

POM     So the media accounts that you had in fact reached an agreement with the DP and the NP which you had to renege on because of pressure?

DO     No, it's completely wrong.

POM     Completely wrong?

DO     We've always had these debates in our own ranks. No final positions have been taken because the whole area was still open to negotiations. What has happened on many issues is we would come along, there is a proposal, we would say maybe this is something we can live with. We go along, we take a mandate, our people say no we don't like that so we go back and we say no. On many, many issues that's the way negotiations go. For people to isolate this issue because it's a very important issue and say there's been a somersault, misunderstands the way the ANC works. We have a negotiating team, our negotiating team reports back to our National Working Committee. If there is no unanimity or there are problems we go to our National Executive Committee, we go back to our regions, we take mandates, we come back, we tell our negotiators what to do and in that democratic process there are often changes in position. We don't find it a contradiction at all. We think it's a source of strength that we are able to do that and act in the best interests of the organisation according to the wishes of members of the organisation.

     On the question of the death penalty, the assumption that a majority of members of the ANC want the death penalty restored is wrong. I do not know of a single branch of the ANC, a single province that has asked for the death penalty to be restored. The ANC is a democratic organisation. We have regular branch meetings, we've had regional provincial congresses of all our structures throughout the country to discuss what we want in a constitution and what we don't want in a constitution. There are nine provinces so there were nine provincial congresses. Each congress was made up of representatives of all the branches of the ANC, representatives of COSATU and representatives of the South African Communist Party. All our congresses are therefore represent the democratic will of all the branches of the ANC. Not a single provincial congress has asked for the death penalty to be restored. The idea, therefore, that a majority of members of the ANC are for the death penalty is completely wrong. At the same time one must accept, as in other parts of the world, that the issue of the death penalty is always a controversial one and depending on the situation in the country you can have a majority for the death penalty at one time and a majority against the death penalty at another time.

     What is our approach to a situation where you can have transient majorities for or against a particular issue? Our attitude is that there are certain core values of the constitution which should be placed beyond the reach of transient majorities. That is the whole idea of a constitutional state which we claim we are and which we want to try to build. There are some people who easily forget that that is the option that we have followed and the whole idea then as we see it is because of the abuses of the past there are certain core values of the constitution which should be placed beyond the reach of transient majorities; the right to life and the right to dignity, the right not to be subjected to torture or punishment of a kind which is inhuman and degrading. Those are core values of the constitution.

POM     Would you be in favour then of there being some clauses in the constitution that would be entrenched beyond repeal, i.e. that they couldn't even be repealed with a two thirds majority?

DO     No I would not be in favour of that.

POM     Given the fact that the ANC verges at any given moment on attaining a two thirds majority or would have a two thirds majority with the support of a small minority party, it gives it a special power with regard to how core values can be dispensed with or maintained.

DO     One is thinking in terms of transient majorities though at the same time one needs to balance that with a democratic process, to make it impossible for clauses in the constitution to be altered would undermine those very values themselves. It should be possible for special majorities to change aspects of the constitution.

POM     Should it not be made more difficult in the case of some of the more core and basic values embedded in the constitution?

DO     That is an issue which has been discussed. What do you need to amend the constitution in respect of the constitution generally or in respect of specific provisions in the constitution? I personally hold the view that a simple two thirds majority of both houses sitting together should be sufficient to amend the constitution in respect of any aspect of the constitution. There are others who disagree with that.

POM     Coming almost to a close, there was a poll released by IDASA recently which indicated that, at least according to their sample, that people believed that the present government was more corrupt than the previous government and it was attacked fairly strongly, the poll, by the ANC who in part laid the blame for that perception on the media or elements in the media who had fostered this whole idea of the gravy train and fostered the notion of there being a lot of corruption. Why do you think people would believe that this government after 18 months in office was more corrupt than the previous government?

DO     I do not accept that people believe that. I do not know how that poll was conducted, what questions were asked and how it was slanted or not slanted. I do not accept that the people do think that way. Polls are normally conducted amongst those who can read and write, who have access to those documentations. More than half of our population are illiterate, cannot read and write. Their views are never canvassed, never obtained. They are the supporters of the ANC. Then with regard to the rest of the poll it depends very much on the kind of questions you ask, but even then, that having been said, public opinion is not something which comes from the public. Public opinion is produced. It has always been manufactured in our country. We have had all kinds of polls over the years to show what a wonderful system of apartheid we have, how it is accepted by the people. Lots and lots of polls of that kind. There are people who still conduct that kind of poll. So I wouldn't pay any attention to polls of that kind.

POM     Again on the question of polls, there were two other polls. One was by Professor Hennie Coetzee at the University of Stellenbosch and one by the Human Science Research Council, both of which purported to show that a majority of ANC supporters were in favour of a continuation of the government of national unity after 1999. Would your comments with regard to those polls be the same as with regard to the IDASA poll?

DO     I think people like Coetzee and others who conduct polls in order to achieve results which they want to see are de-legitimising the notion of polls. I find the idea that a majority of members of the ANC want government of national unity to continue so laughable that it's not even worth the paper it's written on.

POM     So if you're looking ahead to next year, this year, 1996, what's the greatest challenge that you face, your department faces?

DO     Justice Department, I think our greatest challenge is to ensure that we transform the justice system into one which does service a democracy. In general there has been some change but that change has been inadequate. We have been conducting a great deal of investigation into those things that are necessary in order to transform our justice system and we have just produced a mission document which deals with all aspects that do require transformation. Central to all of it is that there should be access to justice to people at every level, which still does not exist in our country. If we are not able to solve that problem then we will not solve the problem of violence in our country because people take the law into their own hands because they see no other alternative. If we institutionalise problem solving and dispute resolution, if we create mechanisms through which people's problems do get solved and people develop confidence in them, then we turn people away from taking the law into their own hands and therefore away from violence. And that is the biggest challenge which faces this department as a department over the next year.

POM     Finally, is there one thing you think the ANC should be doing that it is not doing or one thing that it's doing that it's not doing sufficiently?

DO     Yes, I think we are very bad at communication. The ANC has tremendous achievements behind its back. We have not been able to communicate that adequately. That becomes a serious problem in a situation where the media is controlled by those groups that always benefited from apartheid in the past and who still present news in a way which does not accurately, or in a fair manner, reflect the achievements of the ANC. So communication I think.

POM     Thank you very much.

This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. Return to the Nelson Mandela Centre of Memory site.