Marion Edmunds
The Inkatha Freedom Party (IFP), in a quandary after the snubbing of the KwaZulu-Natal constitution, cannot decide whether or not it should return to the national constitutional negotiating table.
And while the Constitutional Court did refer the issue of provincial powers back to the national constitution-makers for revision, the judgment allows little scope for Inkatha to push its separatist agenda in the final lap of negotiations.
Officially Inkatha has not yet discussed the judgments, but senior Inkatha sources say they were discussed at the weekend, but no clear route had emerged.
IFP negotiator Walter Felgate says decisions about returning to the Constitutional Assembly will be taken next week during the party’s national council.
IFP party advisers such as Mario Ambrosini had muttered, prior to the Constitutional Court judgment, that should the matter of provincial powers be referred back to the CA, there would be reason to return to the CA.
But the cautious ruling of the court on the reduction of provincial powers does not give Inkatha much of a foothold from which to launch its arguments for greater federalism, and should it return, it would probably be a short stay, after which it would walk out again in frustration at not being able to entrench provincial autonomy.
But the provincial route has been closed down with the setting aside of the KwaZulu-Natal constitution. In crude terms, it means Inkatha will have to join the last lap of national negotiations if it wants to have any impact on the new South African constitutional order at all.
Certainly international mediation is no longer an option. This has been raised by Inkatha spokespeople following the judgment but time has blunted it as a lever.
“We will not open that issue,” said an African National Congress source. “They know we cannot turn the debate back by two years and reopen it at that spot.”
President Nelson Mandela’s adviser Professor Fink Haysom said: “I think by participating in the Constitutional Court case, the eyes of the IFP may have been opened to the fact that the terrain they thought they had monopolised — the whole provincial-national debate — had been comprehensively discussed without them, and one almost got an impression that some of them belatedly thought they would have liked to have participated in it.”
What adds to the party’s problems is that the ANC and the NP have got so used to their absence that they are no longer missed. The problem of violence in KwaZulu-Natal has been separated from the constitutional debate through ANC-IFP peace plans, and can no longer be used by Inkatha as a veiled threat to coax a compromise from the ANC on international mediation or provincial powers.
Moreover, the IFP cannot rely on much support form the NP, which is determined to pursue its own course of action and to find common cause with the ANC, as soon and efficiently as possible.
“Inkatha’s return will make no difference to us,” said Meyer yesterday, looking a little weary at the thought of more hours of constitution-making.
The ANC is relieved by the NP’s response so far, because senior negotiators want, at this stage, to keep disputes to an absolute minimum. A frequent response from ANC members is that most of the adjustments needed are “technical” and can be handled by lawyers rather than politicians.
The Democratic Party’s Colin Eglin sees it slightly differently: “Lawyers can come up with the legal solutions but politicians have to take the decision. I certainly would not say that these things were merely technical because they are fundamental to the rule of law and effective governance.”
The judgment in brief
* LOCAL GOVERNMENT: The final text was too vague on how local government should work. Entire chapter on local government rejected. Perhaps the stiffest challenge for the Constitutional Assembly.
* INDEPENDENCE OF WATCHDOGS: Final text made it too easy for government to fire the auditor general and public protector. The interim constitution said these watchdog officials could be sacked only with the backing of a two-thirds majority in Parliament; new Constitution said 50% majority would suffice. The officials’ independence is seen as a crucial check on one-party state rule.
* LABOUR RELATIONS: Individual companies were not guaranteed the right to engage in collective bargaining as offered by interim constitution. Court rejected calls for guarantee of lock-out clause.
* SUPREMACY OF THE CONSTITUTION: Constitution should be supreme law of the land, so clauses shielding the Labour Relations Act and the Promotion of National Unity and Reconciliation Act from the Constitution were rejected. Court also wanted stronger protection against constitutional amendments.
* PROVINCIAL POWERS: Constitution had watered down several of the provinces’ powers, while providing a new structure for political expression, the Council of Provinces. Not a “substantial” power cut on its own, but with potential for excessive national control “substantial” test met.
* PUBLIC SERVICE COMMISSION: PSC’s independence inadequately protected; definition of PSC too vague, making it hard to tell if provinces had been cheated of rights to set up their own PSCs.