GILIOMEE, DE KLERK AND SOUTH AFRICA’S CONSTITUTIONAL TRANSITION

By Dave Steward, Executive Director of the FW de Klerk Foundation

18 February 2014

As Hermann Giliomee observes, “the manner in which white domination was ended between 1990 and 1996 still fascinates both experts and the general public.” Because this debate is so important and because the issues involved are so widely misunderstood, I feel that I must reply to Giliomee’s very long comment on my rejection of his earlier thesis that  the De Klerk government should not have allowed power to slip from its hands.

Giliomee takes exception to my criticism of this remarkable view.  

He cites the praise expressed by Tony Leon and David Welsh for his book “The Last Afrikaners” as somehow refuting my views. However, I was not commenting on his widely applauded book, but on his opinion that De Klerk should not have allowed power to slip from his hands.  I would be very surprised if either Leon or Welsh agree that De Klerk could have, or should have, retained some kind of veto power in the hands of the white minority under the guise of power-sharing - particularly in view of the fact that Leon refused to support power sharing during the negotiations.

I am responding to Giliomee with some trepidation. He is, after all, our leading historian and has delved - more deeply perhaps than anyone else - into the forces, factors and individuals involved in the transformation of our society.

What then are my own qualifications? For twenty years I was a South African diplomat - who experienced on a daily basis the closing net of international isolation. As Ambassador to the United Nations (1981-82) I reached three conclusions: firstly, regarding the deep involvement of the Soviet Union in the ANC and in the international anti-apartheid campaign; secondly, that we could not rely on the West for help; and thirdly that we could expect no recognition for reforms - even for the significant reforms that PW Botha initiated between 1978 and 1986.

The global demand was for “one-man, one-vote” and - in effect - the transfer of power to a majority (i.e. ANC) government. Anyone who imagines that the West would have supported anything less is deluded. The most we could have hoped for - even from Reagan and Thatcher - was support for a strong non-racial constitution and the rule of law - along the lines of the constitution that we ultimately negotiated.

Similarly, Giliomee is mistaken when he says that “moderate leaders here and overseas would have had sympathy for De Klerk if he had from the start indicated that he would not be able to transfer power without the approval of the people who had voted for him - and that means the white voters.” There is no way that any significant country would have accepted that the white electorate had a veto over future constitutional developments - any more than they were concerned about the views of the white Rhodesian electorate.  

In 1986 I was appointed Head of the new South African Communication Service (SACS). I was a member of the expanded State Security Council and regularly visited our regional offices during the height of the state of emergency.

I witnessed at first hand the impossibility and unacceptability of maintaining minority rule over an increasingly restive and angry black population. I supported the state of emergency’s goals to restore order; to restore services and to create an environment for negotiations.

I watched the contortions through which the PW Botha government went in its reform-minded efforts to find a constitutional solution that would not end in the loss of white power.  However, its principal manifestation, the Tricameral Parliament, never enjoyed the support of a majority of Indians and Coloureds - and still retained final power in white hands. I watched the President’s Council wrestling with proposals for the accommodation of black political rights - through the establishment of a “fourth chamber” - or mini-states in the black urban areas. None of these proposals would have stood the slightest chance of being acceptable to black South Africans or to the international community.

The Rubicon that PW Botha would not cross was the extremely painful acceptance that there could be no solution that did not include negotiations with the genuine representatives of all South Africa’s people - and that would not inevitably lead to the loss of exclusive white sovereignty. Giliomee is shocked that FW de Klerk should have admitted as much in a speech in London in 1997. But how does Giliomee imagine that whites could realistically have retained sovereignty (i.e. own government and armed forces) in a country where they comprise a diminishing 10% minority - and in which there is no region in which they come close to constituting a majority?

Anyone who imagined that negotiations would not culminate in an ANC government was also deluded. Since 1986 SACS had been briefing the cabinet on regular opinion surveys that it had commissioned which showed ANC support of about 63%; NP support of about 20% and IFP support of 10%.

The best prospect for white South Africans was the negotiation of a strong and justiciable constitution and some form of power-sharing.

This is what De Klerk promised.

From 1989 onwards I worked closely with the President - first as his communication adviser and then from October 1992 as the Director-General in his Office. In these capacities I shared the sometimes frightening roller-coaster ride of negotiations.

In any negotiations, the determining factor is perceptions of the relative power of the negotiating parties. In our situation, power was inevitably going to shift away from us as we approached a final agreement. The key to success was accordingly to launch the process when the balance of forces was most strongly in our favour.

Such an opportunity arose at the beginning of 1990 - when suddenly all the traffic lights turned green: De Klerk had been elected leader by a caucus that supported fundamental change; Cuban forces had been withdrawn from Angola; the Namibian independence plan had been successfully implemented; and - after the success of the state of emergency - all sides had finally agreed that there could be neither a revolutionary victory nor a solution imposed by the security forces.

Most importantly, the fall of the Berlin Wall in November 1989 and the collapse of international communism changed the global strategic and economic paradigm and significantly reduced the threat posed by the South African Communist Party.

De Klerk moved quickly to take advantage of the window of opportunity that history had suddenly flung open. He seized the initiative by removing at one stroke all the remaining obstacles to negotiations. He did so to the alarm of many of his security advisers - to whose advice Giliomee attaches such importance. In his speech of 2 February 1990 and again before the referendum in March 1992 De Klerk promised that he would negotiate a strong justiciable constitution and power-sharing.

As General van der Merwe points out, there was no going back once negotiations had begun. De Klerk has often commented that it was like a canoeist paddling out of a stagnant swamp. Before he reaches the river that flows to the sea, he must go through frightening rapids. Once the canoeist enters the rapids he is no longer fully in control: he can try to avoid the rocks and the whirlpools and he can try to right the canoe if it capsizes. Unleashing the forces of history inevitably involves risks. However, the risks of doing nothing are much greater.

Giliomee questions De Klerk’s failure to use “hard force”, as PW Botha had done from time to time. He suggests that “the only manner in which hard force could impose a more balanced settlement, would be not to go further than compulsory power sharing and to isolate the radical wing of the ANC, which was led by exiles.”

Does Giliomee really think that De Klerk could have used ‘hard force’ to impose a power sharing solution against the will of the vast majority of South Africans?  And how exactly could ‘hard force’ have been used to “isolate” the exile-led radical wing – which included the ANC’s main leadership? Would this have involved banning, arresting or exiling them? Does he imagine for a moment that Mandela and the rest of the ANC leadership would have gone along with this?  

Any such action would almost certainly have resulted in the collapse of the negotiations and a national and international crisis of catastrophic proportions. It would have immediately isolated South Africa in the international community and generated enormous internal and external support for the ANC. Sooner or later the government would have been forced to resume negotiations - but only after the balance of forces had shifted decisively against it. That is the kind of fatal mistake that Ian Smith made in Rhodesia.

Giliomee claims that the government lost control of the situation during the ANC’s rolling mass action between June and September, 1992 and that De Klerk did not consult his military and police advisers ‘at this critical hour’. This is simply not true. I was there. He was in daily – sometimes hourly - communication with his security advisers - and certainly did not back down under ANC pressure.

Of course he wanted the ANC to stop its rolling mass action and worked day and night to bring them back to the negotiations. But he did not unleash his security forces against ANC protesters to ‘re-establish order’ as some of his security advisers wanted. Instead, he kept his cool. In September 1992 - after the Bisho crisis - the ANC moderates regained control and agreed to resume talks on the basis of the Record of Understanding which was signed on 26 September.

Like many other observers, Gilomee completely misreads the significance of the Record of Understanding and cites it as the moment when the ANC gained the upper hand. He refers to Hernus Kriel’s remark that “in his opinion, the ANC should have been forced to make a large concession to get the negotiations under way again.”

In fact, the Record of Understanding included massive concessions by the ANC. From its position at the end of June - when it had turned its back on negotiations; when it had rejected the Codesa agreements; and when it had openly embarked on a non-negotiated seizure of power, it completely reversed itself. It returned to the negotiations and signed off on all the main agreements that had been reached at Codesa. These included the critically important concessions that

- the final constitution would be drawn up within the framework of constitutional principles that would have to be agreed to by the minority parties;

- during the interim period there would be constitutional continuity;

- there would be a transitional government of national unity;

- the interim constitution would provide for regional governments; and

- there would be justiciable fundamental rights and freedoms.

By any objective measure it was the ANC – and not the government - that had backed down. The concessions that the government made were largely symbolic and related to the banning of traditional weapons and the fencing of hostels. The exception was the ANC’s demand for the blanket release of all its members still in prison, regardless of the crimes that they had committed. De Klerk found this most offensive and was prepared to break on it - but was dissuaded from doing so by his security advisers.

After the transition De Klerk continued to work for the inclusion of some form of power-sharing in the final constitution - as he had repeatedly promised to do.  However, he did not succeed - primarily because the IFP and the DP refused to support him. De Klerk felt so strongly about the ANC’s refusal to accept some form of power-sharing that it was the principal reason for his decision to withdraw from the government of national unity in 1996.

However, he did not support the idea of a minority veto - either in the GNU or in some subsequent power-sharing dispensation. He believed that a racial veto would at the first impasse inevitably precipitate a constitutional crisis that would have jeopardised the whole constitutional settlement. He favoured instead the establishment of a Council of State that would include minority parties and that would sit alongside the cabinet and consider all issues of common interest - but without a veto power.

Parties seldom succeed in achieving all their initial negotiation goals. The NP did not - and neither did the ANC. Initially, the ANC wanted nationalisation and a centralised state with no provinces or regions. It was not enthusiastic about constitutional curbs on executive and legislative power. These misgivings were eloquently expressed by Ngoako Ramathlodi, one of the ANC’s principal ideologists, in an article in September 2011.

He claimed that the balance of forces at the time of the constitutional negotiations had forced the ANC to make fatal concessions. During the negotiations the ‘regime’ had given up elements of political power to the black majority but had immigrated substantial power away from the legislature and the executive and had vested it in the judiciary, Chapter 9 institutions and civil society. As a result, “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society.”

So, Ramathlodi certainly does not agree with Giliomee and JM Coetsee that “the party that held political power - the NP - got little of what it wanted and the party without power – the ANC – got what it wanted…”

Ramathlodi conceded that the new constitution effectively limited the power of the majority to do as it pleased. He also attested to the effectiveness of the judicial system by complaining that white economic interests consistently and successfully challenged government policy in the courts.  He clearly attaches more significance to the constitution than Giliomee who criticises De Klerk for putting too much faith in its provisions and in the independence of our courts.

However, De Klerk did not put all his eggs in one basket - as Giliomee claims. On 20 May, 1994, he told an audience in London that although South Africa had taken a leap of faith - it had done so with “constitutional parachutes and judicial safety devices”. Other safety mechanisms included

- “strong and well-established organs of society, including professional and civil organisations; an independent and outspoken media; and a large and dynamic private sector;”

- the international community - which he believed would help to ensure that all sides would honour constitutional agreements; and

- “the symbiotic relationship which exists between all our communities.”  Government would not be able to harm the reasonable interests of whites without destroying national unity and jeopardising the interests of all South Africans.  

Giliomee’s contention that the “NP’s biggest problem lay in the cabinet is simply untrue”. I know - because I was the Secretary of the Cabinet. Despite the enormously difficult decisions that it had to take, and despite deep misgivings and concern about the future, the cabinet and the NP caucus retained their unity and support for De Klerk throughout the whole tumultuous period.

Of course, there were anguished discussions about the concessions that affected the NP’s bottom line - as there no doubt were within the ANC at the same time. That is what happens in tough negotiations. Hardly anyone was happy - but nobody resigned. De Klerk succeeded in retaining the support of his white constituency throughout the process. As is evident from the result of the 1994 election he also attracted the support of a majority of coloured and Indian South Africans as well as an estimated 600 000 black South Africans.

Perhaps Giliomee’s main criticisms of De Klerk are that he had no mandate to negotiate a majoritarian outcome - and that he did not submit the final constitutional proposals to the white electorate in a second referendum. De Klerk believed that his 69% victory in the 1992 referendum gave him a sufficiently strong mandate to reach agreement on the interim constitution. The interim constitution did not include power-sharing beyond the idea of a Government of National Unity for the first five years. However, it also did not prevent the NP from continuing to work for power-sharing in the final constitution.

However, by December 1993 there was no possibility of exiting the rapids of change and of trying to paddle upstream. A referendum at that stage would have been unacceptable to all the other parties and to the international community.  De Klerk would probably have won - but with a smaller majority than he achieved in 1992. However, had he lost, he would have had to resign as president and call a new all-white election in the teeth of universal international condemnation and mounting domestic insurrection. Not surprisingly, there were few demands from his supporters for a second referendum and no dissension from their representatives in parliament when they adopted the interim constitution.

De Klerk’s decision was vindicated on 27 April 1994 when an overwhelming majority of the white electorate voted for the National Party. Surely, they would not have done so had they not broadly approved of the constitution that the NP had negotiated.

Nevertheless, there were, of course, failures in the NP’s negotiating approach:

It could have made use of stronger negotiators.

More could have been done to nail down an agreement on amnesty before April 1994 - although the interim constitution unambiguously states that “…amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past.”  

The NP should have reached a firm agreement on the nature and scope of the truth and reconciliation process that the ANC launched in 1996.

Giliomee also correctly points to the fact that the ANC did not negotiate in good faith and is committed to the implementation of its unconstitutional National Democratic Revolution. As a result, important facets of our constitutional settlement are under pressure. We know this only too well. The FW de Klerk Foundation has played a leading role in warning the public of these dangers and in defending the constitution.

The real challenge is to mobilise civil society, the media, business and public opinion to uphold the constitution and the values and rights that it enshrines. Nobody ever said that managing our new society was going to be easy - but upholding the constitution is a lot easier - and a lot more likely to enjoy domestic and international support - than defending the idea of a white minority veto.

None of this detracts from the central reality that - with the exception of power-sharing (which it did not exclude) the interim constitution effectively delivered virtually all of the promises that De Klerk made on 2 February 1990.

De Klerk stands out as one of the very few leaders in history who has successfully managed the radical transformation of a society. Unlike his friend, Mikhail Gorbachev, he did not lose control of his revolution.

Since 1994 South Africa has made significant progress. Ironically, the principal beneficiaries have often been whites. We have enjoyed twenty years of relative peace and economic growth. We are once again a respected member of the international community. Our economy is three times as large as it was in 1994. Tens of millions of South Africans have been able to proceed with their lives in relative peace, prosperity and freedom - and without the degradation of institutionalised racial discrimination and without the calumny of being international outcasts.

During this period Prof Giliomee has written wonderful histories, surrounded by the tranquillity and unparalleled beauty of Stellenbosch. He has been able to meet with his friends in the dappled sunlight of the town’s delightful sidewalk restaurants and, no doubt, discuss over a glass of cabernet sauvignon the grievous mistakes that he thinks De Klerk made in handling the transition to our new society.  This has always been the role of those who write history. Those who make history - and who have had to wrestle with enormous social, economic and political questions - often have other perceptions of the past.

I can, however, assure Prof Giliomee, from my own experience of the history of that period, that there would have been no tranquillity, no prosperity, no international acceptance, and no prospects for the future had De Klerk decided to use ‘hard force’ to impose a constitutional system on South Africa in which 10% of the people, on the basis of their race, retained an effective veto over the decisions of a democratically elected government.

And De Klerk? At the age of almost 78 he continues his work to defend the constitutional order that he helped to negotiate more than 20 years ago.

This article first appeared here