To enjoy the full Mail & Guardian online experience: please upgrade your browser
07 Aug 2019 00:00
Some of whose members are seen marching (below) before the deal – into the first democratic elections in April 1994. (Tom Stoddart and David Turnley/Getty Images)
A sweetheart deal. This is how the Ingonyama Trust has been repeatedly described: millions of hectares of land in return for the Inkatha Freedom Party not boycotting the 1994 elections.
Now, in an exclusive story, Hilary Lynd uncovers the secret details of the controversial agreement.
How did 2.8-million hectares administered by the KwaZulu homeland end up in a trust with the Zulu king as its trustee?
The land administered by the other nine homelands, the building blocks of apartheid, came under the authority of the national government. How did KwaZulu manage to preserve what the other homelands lost?
The answer takes us back 25 years to the final days before the first democratic election.
Many have long suspected that the Ingonyama Trust was central to the last-minute decision of the Inkatha Freedom Party (IFP) to join the 1994 election, but lack of concrete evidence — and threatened lawsuits — have made it difficult to convert suspicion into fact. New archival research and extensive interviews have now made that possible.
A major sticking point in negotiations from 1990 to 1994 was the future of those who had enjoyed power and privilege under the old system. This was especially challenging in the homelands. One purpose of the homelands had been to create a social grouping with something to lose. Ending apartheid had to mean dissolving the homelands, but how would the beneficiaries be convinced to participate in dismantling their own power bases?
Nowhere was this more difficult than in KwaZulu. A low-intensity civil war had simmered in the province for years. As the election date, April 27 1994, approached, it seemed KwaZulu was on the edge of catastrophic violence.
Chief minister Mangosuthu Buthelezi, King Goodwill Zwelithini, and the Inkatha Freedom Party (IFP) were threatening to boycott elections as they had the constitutional negotiations. The king proclaimed the “sovereignty” of the Zulu kingdom and fears grew that a secessionist war was brewing. These fears built on the stream of information emerging about hit squads within the KwaZulu police, cooperation with the security services of the white government, stockpiling of weapons, and paramilitary training at Mlaba camp.
Negotiators had to deal with intertwined monarchist and federalist commitments within the IFP. One, represented by the king, emphasised the continuity of the Zulu monarchy dating back to a precolonial era. The other, pushed especially by Buthelezi’s Italian-American libertarian adviser, Mario Ambrosini, pursued maximum devolution of powers from national to regional levels. Both offered a basis for preserving the authority of the KwaZulu government and the IFP, its ruling party, into a post-apartheid order.
Every major party had leaders more and less inclined towards compromise. But, by early April, the hardliners had the upper hand. The IFP showed no signs of backing down from its confrontational stance. In an interview later in 1994, Buthelezi reminded Patti Waldmeir: “I was not threatening, I intended. I was not going to participate [in the election].”
Archived records of IFP-NP bilateral meetings and interviews done at the time by Waldmeir and Padraig O’Malley indicate that some within the ANC and NP had lost patience. Among them were Cyril Ramaphosa and Roelf Meyer, the respective heads of the ANC and NP negotiating teams. They became convinced that the IFP would stay out, elections would proceed, and Buthelezi’s base would disappear in the new South Africa.
One effort after another to bring in the IFP failed. The last attempt involved flying in a team of foreign mediators. This, too, failed. But its failure brought together two key figures. Neither was originally intended to be there: Washington Okumu and Danie Joubert.
Historian Nancy Jacobs has pieced together Okumu’s backstory. The Kenyan diplomat-at-large was on the team because of the labours of Pietermaritzburg evangelist Michael Cassidy and a global network of conservative Christian connections. Most importantly, he and Buthelezi had been friends since meeting in Washington, DC, in the early 1970s.
Joubert was deputy secretary-general in the KwaZulu Government (KZG) department of the chief minister. After being seconded from Pretoria in 1990, Joubert had watched with growing alarm as the IFP/KZG took an increasingly militant stance. Although he respected Buthelezi, Joubert thought Ambrosini’s hardline position was hurtling the country towards “absolute bloodshed”. He was not a member of the IFP. Nevertheless, when a senior IFP leader was unable to attend the meetings at the Carlton Hotel, Joubert was sent in his place.
Throughout these events, Joubert kept detailed notes. The chronology presented below relies on those notes as well as interviews done by Waldmeir and O’Malley in 1994-1995, interviews the author conducted and other documentation, including Okumu’s unpublished book manuscript, the Hansard of the KwaZulu legislative assembly and the report of a technical committee convened in May 1994 to investigate the purpose and consequences of the Trust.
But, first, it is important to note Buthelezi’s version of how the Ingonyama Trust was created. He spoke to this author in an interview last August, and has subsequently responded to the Mail & Guardian‘s questions.
In those answers, he doubts the information on which this article is based: “When it comes to the record of South Africa’s history, a great deal of what is in the public domain is unfortunately inaccurate, marred as the record is by years of deliberate propaganda,” he says.
Buthelezi rejects any idea of the Trust being some sort of sweetheart deal to get IFP sign-off on the elections: “The IFP’s decision to participate in the 1994 elections had nothing to do with the passing of the Ingonyama Trust Act.”
He goes on to label this as “a lie” that has been repeated, “even in official documents”.
Reiterating that “the IFP had already agreed to participate in the 1994 elections” by the time that the Act was passed, he says any idea of land transfer or the creation of a trust “was never part of the negotiations”.
“If it had been, you can be sure that we would have insisted that it be reduced to writing as part of our agreement, for the IFP has vast experience of broken promises.”
Buthelezi says that he discussed the passing of the Act with the NP and the ANC, “but they did not need to give consent”. The Act was passed in the KwaZulu legislature without following normal process, which was necessary, Buthelezi says, because the province’s land would have been transferred to the state after elections.
“This was therefore the last and only chance for the KwaZulu Legislative Assembly to ensure that the land could be maintained as communal land, under indigenous and customary law.”
When asked about the trust earlier this year, De Klerk said he had “very little recollection of the details of the decision on the Ingonyama Trust”. But he said that he is “sure that [he] would have supported such an initiative if it helped achieve the IFP’s participation in the election”.
What follows, based on the sources mentioned, is a timeline of the 12 days in 1994 when the IFP seemed to change its mind about the elections.
When Joubert met Okumu on the evening that the mediation collapsed, he thought he might have found the right person to speak to Buthelezi: “It was a divine intervention to have Okumu there.” Joubert brought in Willem Olivier, a Bloemfontein advocate specialising in customary law, who had been working for the IFP. In his book, Okumu credits Joubert and Olivier for catching him up on the details of IFP/KZG politics.
FRIDAY, APRIL 15
Okumu rushed to Lanseria airport to meet Buthelezi. He arrived too late. Buthelezi had left. But, due to a supposed technical failure, the plane returned to the terminal and Okumu was able to speak to his old friend. Okumu returned to Joubert and Olivier with a positive report: if the position of the Zulu kingdom could be guaranteed somehow, Buthelezi was prepared to listen.
With Joubert and Olivier listening in, Okumu called home affairs minister Danie Schutte, among others. Schutte was willing to entertain the possibility of working informally towards an agreement. A long day of discussions followed. As Joubert recalls, the idea of putting the KwaZulu land in a trust came out of these talks.
On a smaller scale, André Fourie’s ministry of regional and land affairs had been pursuing a similar strategy for the previous two years. Homeland land was scheduled to revert to the national ministry for land affairs after elections. To pre-empt this change, the state began transferring land to homeland leaders. Records of these transfers, though patchy, can be found in the national archives. Though they were shrouded in secrecy at the time, land nongovernmental organisations worked hard to bring them to public attention. The Goldstone Commission and the governing Transitional Executive Council attempted to block such transfers. Nevertheless, they persisted.
SATURDAY, APRIL 16
Joubert, Schutte, and Olivier went to see State President FW de Klerk. Joubert and Olivier presented the proposals they had worked out the previous evening: first, amend the constitution to recognise the Zulu king; second, promise further international mediation after the election; and third, as Joubert put it, “Put the Zulu land into a trust with the king as trustee and call it the Ingonyama Trust”. De Klerk was interested enough to tell them to come back later with a concrete plan.
Schutte, Olivier and Joubert spent the day working through details. Schutte and Joubert recall that Meyer, despite his reluctance to compromise with the IFP, was informed at this stage. When the first three returned to De Klerk, they decided that it had to be Okumu who would present the proposals to Buthelezi. Joubert listed Okumu’s important characteristics: he was an “independent guy who Buthelezi trusts”, “an African guy from Kenya” who was “not directly invested in this whole thing”. What was needed was a “third party”.
In an indication that Buthelezi might have not been kept in the loop, Joubert writes: “Buthelezi cannot see that it was me. Who am I to come up with a plan having discussed it with FW? You can’t use me. We have to use Okumu to do this. Let’s make him the hero.”
SUNDAY, APRIL 17
Fourie gathered a group of legal specialists to draft legislation for the Ingonyama Trust. Among them was Olivier. Ordinarily, Pretoria was not involved in initiating homeland legislation. But these were not ordinary circumstances.
Okumu got tentative approval from both IFP and ANC for his draft agreement. This draft included constitutional recognition for the king and a promise for further international mediation after the election, but it made no mention of the Ingonyama Trust.
MONDAY, APRIL 18
The three negotiating teams met at the Union Buildings. Most important, as recorded in Joubert’s notes, was keeping the ANC in the dark about the land deal.
TUESDAY, APRIL 19
The “memorandum of agreement for reconciliation and peace” was signed. No mention was made of the Ingonyama Trust. An Associated Press video of the subsequent press conference shows Okumu taking a role in the spotlight. Olivier was absent. Schutte and Joubert stood, mostly concealed, in the background.
WEDNESDAY, APRIL 20
Buthelezi returned to Ulundi to sell the agreement as a win. As recorded in the Hansard of the KwaZulu legislative assembly, he narrated the exciting details of the previous days before proposing an adjournment until Friday.
FRIDAY, APRIL 22
In Buthelezi’s opening speech, he told the assembly that the purpose of the session was to push through the Ingonyama Trust Act. The Act established “a corporate body”, that would “be administered for the benefit, material welfare and social well-being of the tribes and communities”. It transferred to the Ingonyama Trust the land originally constituted as KwaZulu in 1971 and also additional parcels acquired in 1986 and 1992. The Ingonyama Trust was to “deal with the land ... in accordance with Zulu indigenous law or any other applicable law”, subject to the condition that “The Ingonyama [Trust] shall, as trustee, not encumber, pledge, lease, alienate or otherwise dispose of any of the said land or any interest or real right in the land” — without prior written consent.
Buthelezi stated that “today’s business was set up … in order to pass the Bill”. The matter required speed. “It is absolutely vital that it should be passed before the elections.” He reassured the assembly that he had discussed the proposed legislation with De Klerk and Fourie.
“It is vital that we should do this, by getting the Bill concerning the land which is now entrusted to the KwaZulu Government, which will still exist now until the end of the month, passed so that the land that belongs to the nation, to the amakhosi and so on, can be secured, if we put it in a trust with His Majesty the King.”
Passing the Act under such severe time constraints required throwing out the rules. Buthelezi moved “that the Rules of Procedure be suspended so that this Bill can be finalised today”. The Bill was read a first time. No members offered comments. The Bill was read a second time. At this point, Buthelezi conceded that it might be good for members to read the Bill. Upon seeing the list of communities and tribal authorities, many complained that they had been left out. Once they received assurances that these omissions would be addressed, the Bill was read a third time and passed. The Speaker “[declared] the House prorogued”’ and the Assembly concluded its business for good.
MONDAY, APRIL 25
Parliament gathered a final time to amend the Constitution to recognise the Zulu king. In his speech, recorded in the Hansard, Schutte acknowledged not only Okumu and Cassidy, but also Olivier and Joubert, whose names were otherwise withheld from the public. “They started the initiative … and they were also involved in drafting the agreement.”
Parliament passed the amendment. The same day, De Klerk quietly signed the Ingonyama Trust Act into law.
TUESDAY, APRIL 26
The interim government raided the Mlaba camp and dismantled the remnants of the IFP paramilitary training programme.
Ultimately, the militants in the IFP lost. The elections were inclusive and so, despite complaints about polling irregularities in KwaZulu-Natal, they were widely regarded as legitimate.
Buthelezi was convinced to throw in his lot with the new South Africa by protecting key structures of the apartheid-era KwaZulu homeland into the post-apartheid era. Former president Kgalema Motlanthe, a prominent contemporary critic of the Ingonyama Trust, told the author, “they found a way of preserving their homeland by keeping out of the elections”. At the same time, the deal secured the legitimacy of the elections and staved off a possible explosion of violence. In Joubert’s view, “what it did is get the people to rock up and cast a vote. That was the objective”.
Once it was clear the election would not be postponed, the IFP’s chance to secure a more federalist arrangement before the election was also gone. The Trust played rather to the monarchist strand within IFP politics. It provided a guarantee of an alternative institutional base, in a traditionalist, nominally Zulu, form. Velaphi Ndlovu of the IFP told the Natal Witness in May 1994, “we did not get federalism which we wanted because we got something more important”.
Without the Trust, Buthelezi faced a choice between two unattractive options. He could go through with the election boycott, lose the IFP/KZG institutional base, and possibly pursue a paramilitary option to resist the consequences, or he could choose to join elections with an uncertain outcome, potentially still lose the IFP/KZG institutional base, but avoid a doomed war of resistance.
The Trust was a possible way out of this impasse.
Power over land meant, of course, power over the people who lived on it. By giving the king and amakhosi control over a resource crucial to the lives of ordinary people, the Trust ensured they would continue to enjoy meaningful authority, no matter the outcome of the election. As Joubert reflects now, the Trust meant “we have a protection because we actually haven’t lost our self-governing territory. We might not have the same powers, but we’ve got land”.
Earlier in the negotiations, the ANC came to support the idea of sunset clauses to encourage outgoing NP officials to see their future in the new order. The Ingonyama Trust performed a similar function for the outgoing KZG. The difference is that the sunset clauses eventually expired and the Trust did not.
On May 20 1994, news of the Ingonyama Trust broke in the national press. Mandela issued an official statement denying ANC knowledge of it. Derek Hanekom, who had replaced Fourie as minister of land affairs, told AFRA News that he was “shocked”. “The land that was KwaZulu is no longer state land. It’s in private ownership, held in trust by the King. Can it be reversed? We’ll have to see what to do.” With 2.8-million hectares effectively gone missing, any plans for land reform in KwaZulu-Natal were hamstrung.
Suspicion immediately grew that a secret IFP-NP deal had been struck. De Klerk and Buthelezi both denied this. Buthelezi attacked the press, saying it was “ridiculous to suggest that [the Act] was the result of any deal, let alone a secret deal” and insisting the Act’s passage had been free of “hanky panky” and had “followed normal promulgation procedure”.
The new Cabinet convened a committee to look into the origins and implications of the Trust. Ultimately, in a mood of reconciliation and nation-building, it was decided not to try to dissolve it.
Whereas the ANC learned about the passage of the Ingonyama Trust weeks after the elections, it became clear only gradually to the IFP that the promise of further international mediation would not be honoured. Despite continued tension, the Government of National Unity shared a conservative bias towards peace. The IFP lacked the power to extract the federalist constitutional provisions they wanted. The ANC lacked the power to overturn the Trust without reigniting violence in KwaZulu-Natal.
Like other compromises from the transition, the land deal has not aged well. At a critical moment, it solved a problem that seemed otherwise insoluble. When all formal channels had failed, an informal process finally delivered the IFP to the elections. The process involved only a small group of elites.
Currently, the Ingonyama Trust attracts attention not for the peace it secured but for the abuses of power it has enabled. In 2017, Motlanthe’s high level panel publicised the conversion of permission to occupy certificates into 40-year leases. Rather than “preserve the rights of rural people to their land”, as Buthelezi would have it, the Ingonyama Trust acts as a landlord. It has attracted criticism for enriching the king and for pushing people off their land to make way for more lucrative leases. On July 28, President Ramaphosa’s land panel recommended the Trust be repealed or amended.
Over time, the positive contribution of this peace deal has faded. The impasse it was created to solve has long since disappeared. The future of the Trust is uncertain, but its origins need not be.
Read more from Hilary Lynd
Create Account | Lost Your Password?