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ANCNegotiations Bulletin

Number 27

Elections Date Set

-27 April 1994‘The most important victory gained at the

negotiations table yet has been the agreementon a date forthe first ever non-racial elections- 27 April 1994t This however has to befinalised at the meeting of the next NegotiatingCouncil on the 1 5 June 1993 so as to maximiseconsensus,

During the debate on this resolution, 17parties (led by the ANC and including the NPregime) supported the resolution. The CPobjected to it and the IFP and other COSAGmembers reserved their support for it.

In Bulletin 26 we reported onthe submissionsmade bythe ANCtotheTechnicalCommitteesof the Multi—party Negotiations Process. Thereare three further developments which havetaken place since:-

* the SABC Board was appointed on the SlstMay, 1993;

' the Technical Committees presented theirreports to the Negotiating Council meetingof the lst June:

‘ the Negotiations Council instructed theTechnical Committee on Constitutionalmatters to draft a transitional constitutionthat would lead up to the drafting andadoption of the democratic constitution byan elected Constituent Assembly

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The New SABC Board

A Panel was appointed through multi-partynegotiations to process the applications forappointment to the Board.The panelconsistedof a number of judges and other respected

people.

This panel was to operate withoutany politicalinterference or involvement. The panel carriedout its work and produced a list of appointees.The NP regime was not satisfied with this list,It complained that it had too great a bias infavour of the ANC.

FW De Klerk summoned the panel to ameeting and ensured that a new list wasdrafted replacing 7 members of the Board. TheANC has strenuously objected to the politicalinterference by F W De Klerk and called on allpeople appointed, and who were not on theoriginal list, to refuse to accept theappointments. The ANC believes that the firstlist produced by the panel should be the list

accepted.

Technical Committee Reports

The various Committees prepared reportsbased on the submissions made. The followingis 'a summary of their reports

1. Constitutional Matters

Gene ral

There were two broad positions adopted inthe submissions by the various parties. Thedifferenceinthe submissions is betweenthosepartieswho believe that theconstitution should

NEGOTIA TIONS BULLETIN No. 27 4 June. 1993

be drafted by the Multi-Party NegotiatingProcess (i.e. IFP & COSAG), and those (ANC,the Patriotic Front & NP Government) whowant the constitution to be drafted and adoptedby an elected Constituent Assembly

General Constitutional Principles

The Constituent Assembly would be boundby these agreed principles when drafting theconstitutiontThe following generalconstitutional principles were recommendedfor agreement:

' The constitution shall provide for theestablishment of a single sovereign stateand a common South African citizenship;

' The constitution shall be the supreme lawof the land and shall prohibit racial and allother forms of discrimination. It shallpromote racial and gender equality andnational unity;

" There shall be a separation of powersbetween the legislature, executive, andjudiciary, with appropriate checks andbalances to ensure accountability andopenness;

" There shell be representative governmentembracing multi-party democracy, regularelections, universal adult suffrage, acommon voters roll and proportionalrepresentation;

“ The diversity of languages, cultures andreligions shall be acknowledged, promotedand protected;

‘ The collective rights of organs of civilsociety shall be protected and recognised;

“ All shall enjoy universally acceptedfundamental rights, freedoms and civil

liberties;

" The status of traditional leaders shall beacknowledged and recognised in anappropriate mannev in the eonstitution;

“ Provision shall be made for the participationof minority political parties in the legislativeprocess in a manner consistent withdemocracy;

The following are principles dealing with theallocation of powers to different |evels ofgovernment:

“ Government shall be structured at nationai,regional and local levels;

' Each level of government shall havedemocratic representation, appropriatelegislative and executive powers andfunctions;

‘ The powers and functions of each level ofgovernment shall be defined in theconstitution Amendments to theconstitution in this regard shall require theapproval of a specified majority of thelegislatures of the regions. lfthe amendmentconcerns specific regions only,the approvalof the legislatures of such regions will alsobe needed;

“ The powers and functions of each level ofgovernment may include exclusive andconcurrent powers;

t Each level of govemment shall have fiscalpowers which wiil be defined in theconstitution;

‘ In the event of a dispute concerning thelegislative power allocated by theconstitution concurrently to the nationalandregions governments,precedence shallbe given to the legislative powers of thenational government.

" Where it is necessary for the maintenanceof national standaids. the maintenance ofeconomic unity, the maintenance of nationalsecuvity or the prevention of action takenby one region which is prejudicial to theinterests of another region or the country aswhole, the constitution shall empower thenational government to intervene throughlegislation or such other steps as may bedefined in the constitution;

“ Where it is necessary for South Africa tospeak with one voice. or to act as a singleentity, powers should be allocated to thenational government;

2. Fundamental Rights during the

Transition

The Technical Committee in its report dealtwith the following:—

' those fundamental rights and freedomswhich are to be entrenched during thetransition;

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NEGOTIA TIONS BULLETIN Na. 27 4 June, 1993

“ the criteria for the limitation and suspensionof rights and freedoms;

“ means and mechanisms forthe adjudicationof such rights and freedoms during thetransition.

Rights and freedoms that qualify forentxenchment during the transition are thosethat would:-

‘ facilitate free and fair election; and

‘ free, fair and full consultation amongstpeople and groups of people in regard to allmatters relevant to the transition; or

’ their exclusion would limit or detrimentallyaffect the freedom, fairness orcompleteness of the process of transition

The inclusion of these rights and freedomsshould also not pre-empt or unduly limit theright or power of a constitution making bodyto draft a Bill of Rights, or determine |awsaimed at socio-economic reconstruction, orremove or correct the imbalances which existand which have been brought about by unfairor undemocratic practices.

While suspension should only occur in thefotm of a state of emergency declared by theexecutive, this should be reviewable by thecourts. And, such suspension of rights andfreedoms would not imply immunity of Stateofficials for their unlawful conduct duringsuch emergency.

3. fiansitional Executive

Committee (TEC)

The Technical Committee recommended thata TEC be constituted with executive powers.Each party in the negotiations process shall beentitled to one representative in the TEC. Theobjective is to facilitate the transition to ademocratic order by:

' creating and promoting a climate for freepolitical participation;

" promoting conditions conducive to theholding of free and fair elections;

The TEC shall have the power to requestinformation relating to its mandate and initiateor participate in negotiations in respect of itsmandate. The TEC will operate through thefollowing sub-councilsz-

‘ local government,

“ law and order, stability and security;

‘ defence;

* finance; and ' foreign affairs

4. Independent Electoral

Commission (IEC)

The IEC shall comprise of between 7 and 11mem bers. It shall function independent of andseparate from the State or government Theobjective of the ”EC is to:

“ assume the responsibility for the

administvation and conduct of the elections:

* supervision of the electoral process;

" monitoring and evaluation of the process:

* determining the results thereof; and

* adjudicating issues affecting the electionsand the conduct of political parties.

5. Independent Media Commission

”MC”

The objectives of the IMO is:

' to ensure equitable treatment of politicalparties by broadcasting services;

* to ensure that state‘financed publicationsare not used to advance the interests of anypolitical party;

" so as to contribute towards the promotionand creation of a climate favourable to freepolitical participation and a free and fairelection.

5‘. Repeal of Repressive Legislation

The Technical Committee studied legislationthat was discriminatory in the area of freepolitical activity and free and fair elections.

It recommended the preparation of a 'highercode’ by which to judge the validity of laws,administrative actions. Such a code wouldestablish the necessaryjudicial, administrativeand political structures to pronounce on thevalidity of objectionable laws.

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NEGOTIA TIONS BULLETIN Na. 27

7. Violence

The Technical Committee recommended thefoliowingp

" All parties in the Multi-Party NegotiatingProcess must sign the National PeaceAccord. Parties infringing the Accord shouldbe penalised.

‘ parties were invited to makerecommendation on the Peace Corps;

Robust yet peaceful political rivalry is ahealthy and necessary feature of democracy.However the present process has seen formsof political rivalry and methods of mobilisationwhich go well beyond what is politicallyacceptable.

The Committee also recognised that there isa direct relation between the lack of a politicalagreement regarding the future South Africaand the phenomenon of Violence TheNegotiating Council was requested to considerthis together with the covert and overt actionstaken to derail the negotiating pvocess.

With regard to the question of Mass Action,reference was made to the GoldstoneCommission report. The right to demonstrateis fundamental and cannot be taken away‘However, parties engaged in mass actionshould;

“ give priority to promoting peace;

“ avoid deliberate provocation;

" ensure thatstructures of the Peace Accordare kept fully informed; and -

" commit themselves to negotiate in goodfaith.

Armed Ialmatians, including the SADF andSAP - it was recommended that there bemulti—party control over these during thetransitional period. It would then be theresponsiblity of the elected government taensure integration of these formations, (Thisis in accordance with the proposal made bythe ANC)

Transitional Constitution—

At the meeting of the Negotiating Council ofthe 1 June 1993, it was accepted that therewas a clear linkage between constitutional

4 June, 1993

principles, the constitution making processand constitutional structures, powers andfunctions of regions. This has been the positionadopted by the ANC.

Accordingly the Council resolved that:-

“ the Council would proceed to negotiate andendeavour to agree on the constitutionalprinciples recommended by the TechnicalCommittee together with the principle ofthe allocation of powerst (See report above);

“ there is a need to adopt a constitution forthe transitional period (which the ANCrefers to as the Transition to DemocracyAct). This is to be negotiated by the Muiti~Party Negotiating Process.

The Technical Committee on Constitutionalmatters was instructed to makerecommendations on:—

‘ the powers, functions and structures of theregions during the transitional period;

“ the constitution-making process to befollowed, including the structures that needto be established to that purpose;

* The procedures to be followed in thedrafting and adoption by the Multi-PartyNegotiating Forum of a constitution for thetransitional period;

* The procedure to be followed thereafter inthe drafting and adoption of a Constitutionby an elected constitution'making body.

The Way Forward

Substantial agreement has already beenachieved. The date for elections has alreadybeen set for the 27 April 1994. it is hoped thatin the course of the next few meetingsagreement would also be reached to establishthe Transitional Executive Council (TEC).

What South Africa needs now is a positivesignpost that we are irreversably proceedingtoward a peaceful and democratic country.Agreement on both the election date and theinstallation of the TEC would do just that.

Notice

This Bulletin is designed merely to inform and

stimulate discussion. The views contained hereindo not necessarily reflect the official policy ofthe NEC of the ANC.

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