/ 10 May 1996

ANC scores high in the Constitution

‘Hand in hand, to a brighter future’ — Nelson Mandela at the Constitutional Assembly, May 8 1996.

The Constitution has become a yardstick of the success and strength of the political parties, and will do much to define them in the eyes of the public in the run-up to the 1999 general elections. Marion Edmunds reports.

Where does the Constitutional Assembly leave the African National Congress?
“In a league of its own”
The ANC has, during the last two years of constitution making negotiated its election promises of April 1994 (and more) through into the final constitutional text. By its conviction and dogged, sometimes ruthless, negotiating style, the ANC has been able to free itself from the worst of the compromises it made in the interim Constitution, defining itself to its voters as the political movement that has not only brought freedom to South Africans, but also entrenched it. It’s likely that the majority of the population will be impressed.

Of all the constitutional victories the ANC scored, the settlement on centre-provincial relations was the easiest, given that at one stage of, constitutional debate, federalism was the most sensitive of all constitutional issues. With the introduction of the Council of Provinces and the concept of co-operative government, the ANC has put itself firmly in control of both the centre and provincial interests, considerably lessening the powers of maverick provinces run by opposition parties (the Western Cape and KwaZulu-Natal) to buck the centre, and diminishing the threat of federalism to ANC national control. The most dramatic of the ANC victories concerned the, “three-pack” of clauses in the Bill of Rights. Over the past two weeks, the National Party stuck fast to positions on labour relations, property and, education, hoping to push the ANC to the edge, and thus to an agreement.

Marathon all-nighters notwithstanding the ANC refused to be eye-balled into accepting the NPs desire to entrench, as a constitutional right, the apartheid-derived system of mother-tongue, single-medium, state-subsidised schools, offering the Nats a sop to this instead. The ANC also refused, with labour’s backing and some say Cosatu’s insistence, to put in a lock-out clause in the Labour Relations Bill, thereby seeming to champion the interests of the workers against employers. Further, the ANC formulated the property clause in such a way that it would be claimed as a tool for land reform”. Also chalked in as victory on the score-board is the ANC’s refusal to allow the NP to introduce any form of executive power-sharing.

The ANC steadfastly refused to recognise traditional leadership in government and continued to insist on gender equality. It has also had success in outlawing racist hate-speech. The ANC can also claim credit for being the chief architect of the Local Government chapter, elevating municipal governance to an independent tier of government with a constitutional guaranteed slice of national revenue. Further, the ANC takes the credit for ensuring that all South Africa’s 11 languages have equal standing, replacing the interim Constitution’s preference for English and Afrikaans. There is a great deal for the ANC to boast about on the eve of local government elections. The ANC is also in the lucky position of being able to boast about the concessions it made, to ensure that other political parties remained on board, thereby giving the text the legitimacy it desperately needs to enshrine it in the hearts of all South Africans, not just in the law.

By giving the Freedom Front its Cultural Commission and a self determination principle, by giving the leader of the NP status as the Leader of the Opposition, and by bending to the Democratic Party and lobbyists from left and right on many issues in the Bill of Rights and elsewhere, the ANC showed itself to be just generous-spirited enough not to be type-cast as a bully — even though it was the largest, most aggressive boy in the play ground. Finally the opportunity the CA has given to the party’s secretary general Cyril Ramaphosa, to champion human right, civil liberties, justice and good government with the most engaging of smiles can only enhance the party’s standing in the eyes of the public. While Wednesday was a day for all South Africans to be proud, it must have been a special day of jubilation for ANC leadership because it set the party on the road to the final new South Africa with everything it needs for success and an electoral victory in 1999.

Where does the CA process leave the Inkatha Freedom Party?
“Sore, sulky losers.”
It was a sad reflection on Inkatha that only five journalists came to a special four-hour workshop on the evils of the final Constitution held at Parliament this week. Most of them only stayed an hour, refusing more cake and tea, to return to the CA believing what MPs had to say there was ultimately more relevant to the public at this stage. The general opinion among all constitutional players, from the presidential office to the Pan Africanist Congress, was that Inkatha has marginalised itself by refusing to return to the CA to light its case for greater provincial autonomy there and that its views would have had an impact on the Constitution had they not left.

Inkatha theoreticians, and legal advisor Mario Ambrosini, will have their day at the certification of the Constitution at the Constitutional Court, where they will argue that this final draft is in fact unconstitutional because it diminishes provincial power and boosts the power of the centre. While their argument in this respect has much weight — the provincial powers have been decreased in comparison to the interim Constitution — their refusal to participate does not help them, partly because nobody hears their side of the story in the media.

Where does this leave the NP?
“Compromised.”
They tried so hard to win through opposition, but in the end the NP’s greatest art is compromise. An early attempt to further power-sharing in the final Constitution was beaten down by the ANC leaving Deputy President FW de Klerk with nothing more than the title of Leader of the Opposition. With stated intention of ensuring federalism in the final Constitution, Secretary General Roelf Meyer agreed to a system of co-operative government that would clip the wings of the NP’s only premier, Hernus Kriel, in the Council of Provinces. Promising to fight to the last for single-medium, mother-tongue, state- subsidised schools, Meyer agreed to an education clause that makes their objective a possibility, but not a constitutional right.

The ANC played the NP carefully from the start knowing full well that they needed the NPs vote to get the two-thirds majority to pass the Constitution, and that once the NP’s support for the text was secured, it would make it harder for the DP and the PP to vote against the text. The cultivated relationship between Roelf Meyer and Cyril Ramaphosa, and the spontaneous camaraderie that developed between Ramaphosa and NP MP Leon Wessels, and then between a number of NP and ANC stalwarts, helped to move the process along in it was claimed, “a spirit of give and take”. Much of the NP’s success lay in the quieter process of finding common ground with the ANC, a party whose ideology they used to oppose vehemently.

The NP was in the difficult position of having to juggle constituencies — on the one hand it had its loyalties to the traditional Afrikaner constituency, but it was also trying to court the emerging black bourgeoisie, coloured nationalists in the Western Cape, and big and small business. In the end, the party compromised on the aspirations of all three, but unlike Inkatha, participated gracefully in the final ceremony for the sake of South Africa and a position as opposition and for the common good. The announcement that the NP will pull out of the Government on National Unity, to better fulfill an opposition role, does not come as a surprise.

Where does this leave the DP?
“Optimistic”
The ANC’s spontaneous applause for DP leader Tony Leon during his earnest speech at the adoption ceremony on Wednesday took some by surprise. The aggression and fearlessness with which the DP took on the ANC directly the Constitution-making process did not endear him to either ANC leaders or back-benchers. The party locked horns frequently with the ANC, particularly over the Bill of Bights, on the issues of property, civil liberties, equality, labour relations, federalism and checks and balances on government leaders, wanting ultimately to secure greater freedom for individuals and the market and wanting to check the power of central government and politicians. In the final instance, it did not win all its battles; it lost many of the big ones, but it refused to compromise on its principles, defining it as a stauncher opposition to the ANC than the NP.

While the NP is still coming to terms with its loss of political power — now finally confirmed by the new constitution al text — the DP is resigned to having more influence than power, and by living by wit and stamina rather than popularity. It is difficult to pinpoint all the instances in which DP arguments have impacted on the final draft, but their accumulative effect is great, given their size and their past. The DP kept the world guessing to the last moment, whether it would support the final draft — of which so much was decided by the ANC and the NP — but in the end, Leon confirmed the party’s support optimistic that it would act as a “shield behind which ordinary South Africans can be secured in the fastness of their rights”. But the optimism is underscored by a wariness that the way to hell can be paved by good intentions.

Where does this leave the FF?
“Sustained, but abstaining.”
The FF’s decision not to vote one way or the other on the final constitution surprised many ANC MPs, if their cries of dismay at the final adoption ceremony were anything to go by, because the ANC believed it had given “the General” — FF leader Constand Viljoen — what he wanted. In many respects they had. The FF say they are satisfied that the constitution acknowledges collective rights, self-determination and creates a commission that will protect the cultural and other rights of minorities. They are also pleased that the introduction of the final Constitution will not end the life of the Volkstaat Council.

However, the FF believes that the agreement on the education clause, which does not entrench Afrikaner single-medium schools, was too much of a compromise for them to accept, and with their constituency in mind, they decided the could not vote for the Constitution. FF negotiator Corne Mulder said that he had been receiving telephone calls of support for their position, and that their principled stand on education had shown up the NP’s weak compromise on education. Throughout this process, the FF has steadfastly stuck to its ground, but it has not taken the opportunity to expand its political horizons and fight for anybody else but white Afrikaners. FF sources said when the deals came through “we are in exactly the same position as we were when the interim Constitution was finalized”.

And the Pan Africanist Congress?
“Amused.”
PAC leader Clarence Makwetu cracked joke after joke at the adoption ceremony, announcing the PAC’s support for the text although it departed from many of the party s principles. He said he was particularly pleased that it ended power-sharing, but was disappointed that the GNU would continue until 1999.

Finally the African Christian Democratic Party?
“Still a believer.”
Now that the process is over, it is quite safe to say that nobody took the ACDP seriously, except for the CA administration which noted all the remarks its representatives made. The ACDP’s point of departure was that the Bible overrode the provisions of any Constitution, as does God’s will. It voted against the adoption of the Constitution.

NP’s last grab at the till

Sly to the last, the National Party attempted to win constitutional guarantees for special pensions for long-serving parliamentarians, just before the end of the constitutional negotiations. It was with some surprise that the waiting hordes of journalists heard, in the nail-biting night, that the NP had added a new proposal on the table for discussion, along with the property, labour relations and education clauses. While the latter three were matters of principle, this new one was a matter of pocket. During the multi-party negotiations in Kempton Park, the NP MPs negotiated constitutional guarantees for pensions for those who had served in the old apartheid Parliament, and to balance it out, those who had served the ANC in Umkhonto weSizwe.

In effect, the guarantee meant that many Nat MPs who served in the last Parliament and are in the new one are receiving double pay — a pension for apartheid days service as well as their current salary package. The NP wanted a guarantee in the final Constitution that this double privilege would not be taken away, once the interim Constitution fell away. The Nats were hoping that by introducing this proposal so late, and with everyone so desperate for agreement, the ANC would concede their wish to avoid a deadlock. ANC sources said that they called the Nats’ bluff on that Tuesday night, challenging them to force a deadlock on a matter of pensions, and to take the consequences. At that stage, the NP took the proposal off the table, knowing that the adoption of the Constitution would overshadow this small incident, and that it was unlikely to make headline news. “You’re right, it doesn’t look good,” said an NP source late Tuesday.