ADDRESS TO BUSINESSMEN

BY MANGOSUTHU BUTHELEZI, CHIEF MINISTER OF KWAZULU
AND PRESIDENT OF INKATHA FREEDOM PARTY

RAINBOW ROOM, JOHANNESBURG COUNTRY CLUB : 2 NOVEMBER 1993

I wish to thank the Co-Chairman of the Consultative Business Movement, Mr Neal Chapman and Mr Murray Hofmeyer for extending a cordial invitation to me to have this dialogue with you as Captains of Industry. Without you the creators of wealth, no leader in our country would be able to address the needs of the population.

We are in a country where the needs are vast, because of the poverty of the largest number of our citizens. We are also a country where half the black population is only 15 years of age and younger. This makes us a Third World country, and most of the expectations are bound to be unrealistic. The whole of Southern Africa looks up to our country for economic upliftment because of the resources that our country has, and because the economies of most of our Southern African countries are interwoven with the economy of South Africa.

I appreciate the opportunity to be here this morning to share my perspectives on where I think the country is going, and as I did yesterday. I would like to share with you what I think is needed to create conditions for growth and prosperity.

I realise that this is a crucial time in the history of our troubled land. It is a challenging time when we must move from a racist society, where the colour of a man's skin determined his opportunities in life, to a period of equal opportunities for all.

It is now four years since President FW de Klerk made his now famous speech in Parliament, on the 2nd of February 1990, when he announced the abolition of apartheid. The more time it has taken for us to reach a point where these opportunities will really appear to be available for all, the more restive the entire population has become, particularly the underprivileged.

From the time of the Convention For A Democratic South Africa up to now, when initiatives were first taken to produce a new Constitution for the country, I have openly regretted the fact that unlike most African countries in Africa, which were transforming from being racist or Colonial societies, to democratic societies, ours is the only country where leaders were not directly involved. It is the only country where lower-rung leaders carried out negotiations in the absence of the leaders or principals.

Whoever made the suggestion that leaders should not attend did
our country a great disfavour because I believe that this is the
reason why we are facing the political crisis that we are facing
today.

But before I go into that, let me express my appreciation to the
Consultative Business Movement, who has always had a policy of
giving various political organisations and leaders the
opportunity to exchange views with them. So I intend sharing
with you our IFP perspective. Although we have been consistent
and constant, I should not assume that everyone of you knows
where the IFP stands as far as where we think the country should
go, or as far as economic development and political restructuring
is concerned.

With our steadfast commitment to federalism and free enterprise,
we believe that you know where we are coming from and where we
wish to take our country. So it is with this understanding that
I wish to ask you to help us to build a truly new South Africa
where federalism, free enterprise and democracy are the
fundamental pillars on which our society will be based.

No doubt many of you are concerned with the present impasse in
negotiations. With the unfair and blatantly dishonest coverage
of the Freedom Alliance's position, it is to be expected that
some of you are probably feeling a little exasperated with our
stand on multi-party talks. As you can rightfully point out, if
only the politicians could resolve their differences then we can
once again get down to the business of creating wealth. We in
the IFP understand your frustration. We empathise with your
predicament. Our problems are our problems. We know that
without resolving these our country might slide into an abyss.

Yet we are convinced that our position is right; that our stand
is necessary if we are to achieve a federal democracy in South
Africa. The fact that the ANC is said to be bending over
backwards to accommodate the Freedom Alliance's demands is not
the issue. What is the issue is their unwillingness to back down
on the demand on a two-phased process to the writing up a final
constitution. Small wonder. With this process comes the
possibility that they alone will be able to write up South
Africa's final constitution.

This is what we think we have every right to object to. We know
only too well how whites for almost 100 years ran this country
on the basis of unilateral impositions on the majority of the
population of this country. It appears now as though many people
in this country including some business leaders and the media are
urging the South African Government and the National Party, in
cahoots with the ANC/SACP alliance, to make unilateral
impositions on those of us who were not part of their Record of
Understanding which President de Klerk and Mr Mandela signed on
the 26th of September last year, during a Bosberaad.

The Government delegation and the National Party delegation have just been to another Bosberaad and everyone is shouting that we must swallow Holus-Bolus what these two have again agreed to. The media is presenting this as 'the final offer' that the Government/National Party and the ANC/SACP alliance are offering those of us who were not at the Bosberaad. This attitude amazes us. We are talking here about the most fundamental law of our country - a Constitution. Any Constitution that can have any chance of lasting, must have a stamp of universality. This it can only have if it is all-inclusive.

Throughout the decolonisation period in Africa, all parties met together to hammer out a Constitution for each particular country that was democratising. Each party was led by its leader in the multi-party talks. This is not what has happened in our country as I have already stated. The Constitution of any country is not authored by those who are regarded as Angels for those who are regarded as villains in the country's society. All shades of political opinion should be represented.

A Constitution belongs to all the people of the country. It belongs neither to the Right nor to the Left. It is a Constitution for all the people and must be authored by people representing the widest spectrum of political opinion as possible. All we want guaranteed in a Constitution are our Human Rights. The Human Rights of the people must be guaranteed by all in a joint effort. No parties have the prerogative to dispense Human Rights to others, however powerful they are perceived to be.

It has really amazed me that people who claim to believe in Human Rights should say that the ANC/SACP alliance and the South African Government and the National Party have conceded enough 'concessions' to the rest of us. Why must our Human Rights be 'concessions', either from the South African Government or the ANC/SACP alliance? So the idea that whichever Party is in the majority in a Constituent Assembly should write a final Constitution is absolutely unacceptable to us.

More horrifying is that with this process whichever party or parties is in the majority in a Constituent Assembly, will be able to tear up the interim constitution and write their own constitution without so much as taking a second glance at the constitutional principles which have been agreed upon until now. As it now stands, in the advent of any party or parties coming into power, we can forget about a constitution which will entrench strong regional government, let alone federalism. We can certainly forget about a Bill of Rights which will entrench property rights and the right to free enterprise. For example the ANC's President has openly and repeatedly rejected the federal option.

But let us examine this two-phased process more closely so that you can see what I am talking about. The starting point of the ANC's two-phased approach to the writing of South Africa's constitution, which is based on their Harare Declaration, is that

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an interim constitution would be agreed to by parties taking part
in multi-party talks. This interim constitution would empower
Transitional Executive Councils which would level the playing
fields for South Africa's first fully-inclusive election. The
elections would then be held for a Constituent Assembly which
would write up a final constitution. A government of national
unity would then be set up which would accommodate the political
aspirations of those parties with proven voter support.

For you this process might seem reasonable enough. According to
these proposals, a Constituent Assembly, even if dominated by the
ANC, or any other party, would be constrained by an interim
constitution and constitutional principles agreed to beforehand.
So far so good. Yet we have not touched on the deadlock-breaking
mechanism which nullifies these checks on future ANC
totalitarianism

Under the present plan, the elected Constituent Assembly would
be forced to reach agreement on a final constitution within two
years of elections. If no agreement was reached then the
deadlock-breaking mechanism would be activated. This would
involve a referendum being held. If the constitution was not
adopted by a 60% majority then further elections would be held
for a new Constituent Assembly, with only a simple majority of
Parliament needed to endorse a final constitution. Crucially
this final constitution could be adopted without so much as
taking into account any constitutional principles which might be
agreed to beforehand.

Hence by the ANC and the Government agreeing to include this
mechanism in the interim constitution they will be giving the
government of the day carte blanche to generate deadlocks in
order to relieve itself of the restraints of constitutional
principles and the limitations on the power of the central
government. There would then be little possibility that central
government would devolve powers and functions to the regions in
line with our demand for federalism.

So in order to make this two-phased process more palatable to the
IFP and other members of the Freedom Alliance, the latest
proposals of the ANC and the Government are now said to include
the upping of the parliamentary majority needed to pass the
constitution from a simple majority to 60%. Contrary to press
reports this is no compromise. The two-phased process remains
intact. We believe that the entire process itself is
intrinsically flawed and must therefore be scrapped.

Serving to illustrate my point is the recent debacle over the
lock-out clause which was agreed to at multi-party talks. All
political parties at the talks, including the ANC and the South
African Communist Party, agreed to a clause in the Interim Bill
of Rights which would entitle employers to lock-out striking
workers. However, as a result of the vehement protests of
COSATU, the ANC have now declared that they would, and I quote
"fight it with everything we have". If this is a sign of things

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to come then God help us if the ANC manage to win the elections.

What chance will we have that the ANC will keep its promises, especially given that they would be entitled to write up the constitution.

To stop them we must not give them room to manoeuvre. The only way we can do this is to fight for a single-phased process to writing South Africa's final constitution. Contrary to what the press tells you, there is no reason why this cannot be done. As part of our proposals we believe that the purpose of the multi-party negotiations should be to agree on the fundamental constitutional principles, which can then be handed to a body of constitutional experts to prepare the draft constitution. This draft would be returned to the multi-party negotiations for approval or rejection in its entirety, and once approved would then be submitted to a national referendum. Throughout Africa all countries with the exception of Namibia did not write their Constitutions via a Constituent Assembly.

It is argued furthermore that both the constitutional principles and the draft constitution would reflect the constitutional inputs provided through the ground-up democracy building processes conducted in the regions. Only after a successful popular referendum would elections then be held for a future democratic government.

We in the IFP believe that this process is infinitely superior to the ANC proposals in that it eliminates the need for a period of transition and an interim government. We believe that an interim period would serve only to create loopholes for political manipulation and abuse and only serve to prolong South Africa's political uncertainty and economic stagnation.

Now that you have gained an insight into the IFP standpoint, you now might ask how do we reverse this process? In order to facilitate a redirection of this two-phased process the IFP has called for a Summit of Leaders of the major political groups.

With the formation of the Freedom Alliance we believe that there has been an irrevocable realignment in politics in this country, so much so that it can now be argued that negotiations are being driven by only three dominant power blocs - namely the ANC/South African Communist Party Alliance and its Patriotic Front allies, the Government/National Party bloc and the Freedom Alliance.

Therefore with the formation of the Freedom Alliance we believe that the way has been paved for a Summit of the three major power blocs in order to resolve the present negotiations crisis. Indeed, we believe that such a Summit is our last chance of breaking the existing deadlock in negotiations. As we have noted, when it comes to negotiating constitutions around the world the process has always been leadership driven.

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Sadly, and yet quite predictably, our call for a Summit of leaders has been rejected by the ANC and has received a luke-warm response by National Party. In his reaction ANC Secretary-General, Cyril Ramaphosa, said that the Summit would disrupt the tight time-table multi-party negotiators were working on to meet the November 5 deadline for the final draft of the interim constitution.

If anything this response shows the contempt that the ANC feels for multi-party talks. It once again vindicates our opposition to the setting of an election date before we had even decided what the form of state was to be. We knew then that by following this route negotiations would be rushed and all opposition to the ANC's Unitary State option would be bulldozed over. Yet probably most disturbing of all is that this response clearly illustrates the extent to which the negotiations process is being driven by the ANC in collusion with the National Party Government.

Despite this collusion we in the IFP are committed to a speedy negotiated settlement to our problems. Time, as you our businessmen know, is of the essence. The sooner this country can democratically elect its final future government, the sooner we will achieve peace and prosperity.

However, if the new South Africa is going to be one of peace and prosperity then whatever constitution that might be trashed out at multi-party talks will need to be underpinned by strong and vigorous economic growth. For such growth you, our businessmen, will need to be able to invest with a degree of certainty and confidence. You therefore need a stable environment in which you can invest time, money and effort. Of course this environment demands prudent economic policies, with low taxation levels, low inflation and rising levels of productivity. But equally important are guarantees that your investments will not be tampered with by any new government.

It goes without saying that you should be able to invest without the threat of nationalisation hanging over your heads. We in the IFP empathise with you. We assure you that should we become the government of South Africa we would respect your right to own property and exchange that property. We are dead against nationalisation and expropriation and believe that it does not provide a solution to our problems, but would merely serve to spread poverty. By saying this we are not saying that our people who have been denied this right should not be given access to land.

We argue that the individual has an inalienable right to own property and to exchange that property. No government, we believe, should be allowed to tamper with this right. It is the IFP's view that the inclusion of a clause protecting property rights is crucial for future prosperity in that security of tenure is fundamental to a growing economy. It is our view that it is no coincidence that the most powerful and prosperous democracies are those which have the greatest respect for private property.

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Despite the fact that we fervently believe in private ownership of property, the right to own property is not shared by our negotiations partners. The fact that there is still as yet no agreement on a clause protecting property rights is illustrative of this point. Months ago, negotiators hurriedly appointed a Technical Committee to draft an interim Bill of Rights. The reason for this haste was that this interim Bill of Rights was regarded as a minor issue to be dispensed with quickly. After all, an elected Constituent Assembly would draw up a final Bill of Rights after the election.

So as a result of this haste we now have an interim Bill of Rights which paves the way for the extinguishing of personal liberty, the expropriation of property without compensation and the creation of a socialist command economy.

As regards the right to property, while it has been agreed that every person would have the right to acquire, hold and dispose of rights in property, this is qualified by a statement that the state is entitled to expropriate property in the public interest. If compensation for expropriated property cannot be agreed upon, a court would decide on specified grounds, including the history of acquisition, the value of the owner's investment and the interests of those affected. This opens the door for the government to strip the individual of his property without that individual being able to raise so much as a whimper of protest.

Although we in the IFP argue that those who have been dispossessed of their land are entitled to have their land restored to them, unlike the ANC, we do not believe that we should include this right in the Bill of Rights so that it compromises all other property rights. While we are adamant that the injustices of the past be addressed, we do not believe that this should be done by destroying the very foundation on which a prosperous economy is based.

It is however not the interim Bill of Rights which is the issue here. It is the fact that the Bill of Rights can only be agreed on and entrenched by a Constituent Assembly. With the drawing up of a final Bill of Rights being the prerogative of a Constituent Assembly we can forget about the right to private property and, therefore, wealth creation. Just because the ANC no longer mentions nationalisation, it does not mean that they have given up on it as their policy.

It is hoped my address has thrown some light on the IFP's position at multi-party talks. As you have heard we have not taken our stand because we are spoilers, or afraid of democracy as the press labels us, but because we are afraid for the future of federalism and democracy. Let us hope that the IFP along with our allies and you, South Africa's businessmen, can steer negotiations back on the right track.

Thank you.

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Ambassador Princeton N. Lyman
Executive Office
Amembassy Pretoria

UNITED STATES AMBASSADOR
PRINCETON N. LYMAN

"SOME THOUGHTS ON CONSTITUTION-MAKING"

REMARKS AT THE JOHANNESBURG PRESS CLUB

OCTOBER 28, 1993

I appreciate this invitation to meet with you today. This is a momentous time for South Africa. And it is being closely watched in the United States. We have been both concerned and involved with South Africa's passage from the destructiveness of apartheid to the brink of democracy. The final distance to be travelled is sometimes the most difficult. Certainly, here, it may be the most challenging to those charged with leading the country across that final threshold.

It is perhaps not surprising that as the actuality of the final demise of the old system becomes certain that those troubled by what is to come will become most outspoken and resistant until their concerns are either met or overcome. The difficulty in the present debate between the Government, the ANC, and the Freedom Alliance is that the exact nature of the issues that separate them is not absolutely clear. The debate ostensibly focuses on both substance and process -- e.g. the issue of federalism and the question of a one or two-stage process. But the deeper fears and objections that drive the parties may not be well represented by those issues. There is more at stake here.

THE UNITED STATES EXPERIENCE

I find often in this critical debate references to our experience in the United States. We have, of course, established one of the longest standing democracies, and we have done it with a federal system of government. We were one of the first nations to use a written constitution to set forth the relationship of the people to their government and the principles by which power would be allocated, checked, and shared-- an approach which Europeans viewed with skepticism at the time. In the process, we moved away from principles of natural law, which underlay the earlier constitutions of our states, especially the various Bills of Rights, to a more precise form of legal definition that would both define these rights and powers and bind the participants in the union.

So our experience is perhaps relevant. And I cannot hide some pride when such references are made. But of course, as you know, the history and make-up of our two countries, and the times between our two constitutional experiences are very different. One can look to the American experience, as to others, for valuable insights as to how various issues have been addressed in other countries, and to the actual experience of systems such as federalism. These, and the history before and since of certain fundamental principles of democracy and human rights, offer valuable guideposts for those addressing those issues in South Africa today. But the responsibility for drafting a constitution for South Africa, must, in the end, draw upon the conditions, aspirations and support of the South African people.

Embassy of the United States of America
United States Information Service
877 Pretorius Street
Arcadia, Pretoria
0083

Telephone: (012) 342-3006
Telefax: (012) 342-2090

With these caveats, I think it would be useful to review some elements of the American experience relevant to the issues under debate in South Africa today. I do so because sometimes our history is not well understood, sometimes by Americans themselves who like to gloss over some of the fierce debates and controversies that surrounded the birth of our own constitution.

## PROCESS

There is no one perfect way to draft and ratify a constitution. The experience over the last two hundred years has provided many different models--sometimes drafted by only a few persons, sometimes by parliaments or assemblies; sometimes ratified by existing entities such as legislatures, sometimes by special assemblies, and in other cases by referendum. There is no inherently right way. The test of a constitution is in its content and in its acceptability by the people. Content can be produced in many ways, so can acceptance.

Our process, which began with a convention called in Philadelphia in 1787, was also challenged at the time and even more fiercely during the battle for ratification. The final draft had not yet been signed at Philadelphia before opponents began agitating for a "second convention," to review and revise the work of the first. This was fiercely resisted by proponents of the new Constitution who argued that another convention would only delay the process when the country was faced with a crisis of authority and instability. Indeed one of the driving forces behind the convention in the first place was the growing economic problems of the individual states and the threat of military uprisings that these problems provoked. The argument for a second convention persisted, nevertheless, through much of the ratification process and even beyond.

The process proposed to ratify the constitution was also challenged. The delegates in Philadelphia recommended that each of the states call a special assembly to ratify the constitution. Opponents saw this as bypassing existing legislatures in order better to secure approval. Then, switching to the other extreme, opponents urged that the state assemblies should wait to let each town review the constitution first; this was defeated. Opponents also argued against the decision to have the constitution come into effect when nine of the thirteen states had ratified it, rather than by unanimous approval of all the states as required under the Articles of Confederation that still governed the country.

And then there was the issue of time. Opponents railed against what they thought was undue haste in rushing the document to ratification. They pleaded for more time to study, review, and revise it to meet their objections. Richard Henry Lee, one of the signers of the Declaration of Independence, described the speed with which the process was moving as "a temporary insanity." Constitution-making was too serious a business to be hurried through, he insisted. He described the process as "certainly the most rash and violent proceeding in the world." On the other side, supporters argued that the situation was urgent and the question was in reality, after all the debate and compromise that had taken place at the Philadelphia convention, whether, in Alexander Hamilton's words, "men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their constitutions on accident and force."

## CONSENSUS

The Constitution that emerged from Philadelphia was also not at that stage reflective of all major political leaders. Some delegates walked out of the Philadelphia convention in frustration when their views were repeatedly not accepted. Of the fifty-five delegates who had gone to Philadelphia, only thirty-nine signed the final constitution. The ratification process that followed was marked by fierce debate, sometimes reckless charges, and on occasion less than perfect procedure. Opponents in Massachusetts charged that they had been treated with utter disrespect and with unfair methods. In Pennsylvania, opponents tried to prevent a quorum by staying away only to have two of their members forced back into the chamber until a quorum was declared. Riots occurred and violence was threatened. Both sides warned of the danger of civil war if their side did not prevail.

Sectional interests fed the debate. Farmers suspected that the new Constitution favored the eastern commercial interests. Southerners feared domination in the new Government by northern traders and manufacturers, while northerners chafed under the concessions made to slavery and derided southerners who favored the constitution as aristocrats who could never even understand the northerner's love of equality and freedom. Charges were made

on both sides of special economic interests that were being served.

When the voting took place, two states initially rejected the constitution. In the three largest states, Virginia, New York and Massachusetts, the vote was extremely close.

## FEDERALISM

For all this political and factional fighting, mudslinging and maneuvering, at the heart of the debate for most of the leaders on both sides was a genuine concern over the issue of central versus state powers, i.e. the issue of federalism. Opponents of the new constitution feared that it would consolidate power in the central government and denigrate the power of the states. They feared specifically a tyranny of the majority. Arguments took place over the nature and basis of sovereignty, whether it was lodged in the states or divided, and over the issues of powers reserved to the states vis-a-vis those accorded to the central government.

Out of this debate, the supporters of the constitution moved the issue of sovereignty to a new plane. They argued that sovereignty rested not with the states but with the people. In Federalist theory, the sovereign people, standing outside the government, expressed their will in the form of a written Constitution which placed absolute limits on elected officials. Furthermore, it was the people who divided governmental power between the states and the central government. Thus sovereign power could be divided without making the central government a tyrannical state.

This point was emphasized first of all by not mentioning the word "sovereignty" in the Constitution at all. At the same time, the preamble to the Constitution begins, not "We the delegates of the states," as in the earlier Articles of Confederation, but "We the People of the United States .. do ordain and establish this Constitution." And even the Tenth Amendment, designed to placate fears of an overbearing central government, says that powers not delegated to the central government or prohibited to the states are reserved to the states respectively, "or" -- it adds -- "to the people."

The opponents made their point nevertheless. Out of their arguments and fears emerged the first ten amendments to the Constitution which make up our Bill of Rights. Agreement by the supporters of the Constitution to a Bill of Rights was crucial in winning ratification. Our Bill of Rights has emerged to be one of the strongest and most important elements of our Constitution. It has emerged as the part of the Constitution that protected and elaborated the rights of citizens. And I would add for this audience that it has been particularly important in defending the freedom of the press. And I would hope that attention to freedom of the press is taken into account in the drafting of the Constitution in South Africa because a free press is clearly in our experience a major bulwark of democracy. The addition of our Bill of Rights was in many ways the turning point in the debate over ratification. Once it was accepted, those who had opposed the constitution for other, less articulated reasons, were unable to justify their opposition.

And, perhaps one of the most hopeful aspects of our history is how quickly the battle lines faded once the Constitution came into force. Many who had opposed it came around to supporting it. Other factors helped. The return of prosperity, the appeals for unity and the democratic instinct all had effect. And faith in America. As Richard Henry Lee, one of the most staunch opponents, later remarked, much depended on the leadership. Although the Constitution has faults, he wrote, "the honor and safety of the United States might still be preserved by enlightened men."

## A LIVING DOCUMENT

But the history of our Constitution does not end there. The federalism debate, the argument over the powers of the central government was not settled once and for all in 1788, with explicit and detailed limitation or delineation. Following the list of powers that were delineated comes the provision that Congress can make "all laws which shall be necessary and proper" for carrying into execution the specifically detailed powers, a phrase that has been interpreted in subsequent times to give congress considerable latitude. On the relationship between the central government and the states, there are in fact clauses that could cut both ways. The Tenth Amendment, as noted, reserves that powers to the states that are not delegated to the central government, but the "supremacy clause" (Article VI), makes the Constitution, central government legislation and treaties made by the central government the

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supreme law of the land, to which all states are bound. These somewhat conflicting clauses, these pulls and pushes in different directions, intended to satisfy opposing views, became the warp and woof of constitutional interpretation over the years, indeed the lifeblood of a living Constitution.

The real history of our Constitution is thus in the continued usage, interpretation, and amending that has gone on for the last two hundred years. In that period, the country has had to adapt to conditions never imagined by the founders: modern commerce and communications, greater economic interdependence across the country, scientific findings that changed the impact of one's states' actions on another, e.g., pollution and other environmental findings. The strength of the Constitution is that it was adaptable, while preserving the basic principles on which it was founded.

Over the years, in face of the demands of a modern economy, of technology, and other factors, central government powers have in fact been greatly expanded. The federal government in the United States, for example, under the constitutional clause on regulating interstate commerce, establishes minimum wages, the rights of workers to organize and strike, occupational health and safety standards, the price of certain resources such as natural gas, minimum welfare payments and in a variety of other ways facilitates a national economy so that it is not fractured and made inefficient by restrictions across state borders or by obstacles to the free movement of labor and capital. The sixteenth amendment gave the federal government the right to collect income taxes, providing for the strongest revenue base at the center. To protect the health and welfare of the citizenry, the federal government today sets clean air and water standards, gas mileage targets for autos, national immunization programs, and limits on advertising for cigarettes.

We have also had to adjust the balance between liberty and equality, an issue under debate in South Africa. The founders of our Republic laid great store on liberty, and related liberty to property and to basic civil rights. But the Constitution began with insufficient attention to equality and we paid dearly for it. It took us one hundred years to redress the sin of slavery. Then we allowed ourselves for far too long afterward to ignore, behind the shield of states' rights, the denial of basic political and civil rights to minorities in some states, including not only denial of the right to vote but of basic protection before the law. Thus it took us another one hundred to legislate and protect the rights of minorities to vote, get education and jobs.

Women were not granted the right to vote until early in this century. More recently, affirmative action programs have been enacted and an amendment on women's rights remains under debate. Going further today, the federal government requires educational institutions across the country, even though education is largely in the hands of state and local government, to spend equal amounts on physical education and sports for both male and female students. In sum, equality is now getting the attention it was denied at the outset.

But the debate over fundamental issues continues, and the trend is not one way. Recently, there is a movement to restore more power to the states in areas such as welfare, in use of federally collected taxes, and other areas. The debate over liberty continues, in issues such as whether there is a constitutional right to privacy, over abortion rights, and over the limits of affirmative action.

Our Constitution is thus a dynamic one. The issues of federalism, of liberty versus equality, of national security and welfare versus state and local governments' rights -- these are issues not cast in stone but ones that need constant reiteration in light of new conditions, new demands upon society, and indeed more advanced ideals of both liberty and equality.

## RELEVANCE TO SOUTH AFRICA

What relevance to South Africa is our experience?

The issues under debate in South Africa -- liberty and equality, the separation of powers, cultural rights and the rights of minorities -- are the fundamental issues with which a democracy must deal. But they do not yield to firm and final formulae. Rather, they are principles which must be articulated, defined, then refined, and debated continuously as a democracy grows and changes.

There is considerable debate in South Africa about whether the process of transition is moving too fast. Some accuse us in the international community of unduly rushing the participants, when so much is at stake. Constitution-making is indeed critically important, and worthy of great care. But when I hear people say, "We should not go forward until we get it right," I would suggest that one never gets it altogether right, not at any one time for all time. We have amended our Constitution twenty-six times. And we still don't have it completely right. Part of the process of getting it right is in operating a democratic system. South Africa has not yet begun that.

Moreover, how long do the people wait for the experts and leaders to get it right before they have a say? The majority of people in South Africa have been waiting for three hundred years for leaders to get it right, denied their right to participate in the political process all that time. There must come a time when the people have a say, have a ratification process that directly or indirectly reflects the majority. Obviously, as in the great debate we had in 1787-88, the document put before the people should be thoroughly analyzed, debated and reviewed by the best of the leadership and be careful to protect the rights of minorities and individuals even before put to ratification. But it might be too much to ask that complete consensus be achieved before the people can act. As in our debate, there is a point at which further delay can defeat the very process itself, can lead to such unrest that democracy is threatened even more by disorder and mob action than by imperfections in the initially accepted document. Complete consensus may indeed not be possible in a dynamic society with many, sometimes competing interests.

There is also some relevance to the debate in our history between those who feared a central government and those who feared granting too many powers to a central government. Protection of minorities of regions and of individuals is essential to a free society. But the rights of a majority also are central to the concept of democracy. And effective government is central to order. The majority must have the authority to set directions, put the country on a particular path, to achieve results that the population seeks. It must be able to elect a government with the authority and the ability to get on with the task. Otherwise what is the meaning of democracy, the meaning of elections? Moreover, what the authors of our constitution recognized was that weakness of government poses its own threat to liberty. Enabling government to be as strong and effective as the public's business demands, while preserving the precious heritage of liberty and the limits on absolute power -- that was the genius of our founding leaders and the genius of our Constitution.

As to federalism, the United States has gone on record saying that South Africa would be well served by a federal system of government. We have said that because we believe that a federal system provides some checks to the power of a central government, reflects regional differences and aspirations, and brings government closer to the people. It also allows for the experimentation and variety that will likely produce better solutions to the nation's problems than monolithic, centrally determined programs.

But we have learned in our history that a healthy federal system should reflect the needs of a modern and dynamic economy. As the recent study of the financing of regions by the Consultative Business Community demonstrates, care should be taken in the fiscal aspects of federalism to assure the economic viability of various regions, the efficiency of revenue collection, and the strength and support needed to spur overall economic growth. If the US is a model in this area, it is not 1787 but 1993 that should be examined.

Further, there is, in my belief, a fatal error in equating federalism in South Africa with ethnic enclaves. If we had gone that route in the United States, emphasizing English Catholicism in Maryland, Germanic culture in Pennsylvania, Dutch hegemony in New York, we would never have built a nation. We would have never adjusted to waves of immigrants who came from yet other cultures and brought new vitality to our society. Above all, we would have lost our identity as a people who could appreciate differences, respect them and protect them from governmental interference, but who did not accentuate them over those principles and ideals which we held in common. One author has suggested that it was when we adopted the preamble to the Constitution, "We the People of the United States," that we first became a nation.

In South Africa, making ethnic enclaves the primary basis for federalism seems just as dangerous to South Africa's aspirations as a nation. The history here is of course very different. And there are overlapping geographic and ethnic or language concentrations much more pronounced than we had. But in the rapidly modernizing economy of South Africa, there are also many people of various ethnic and language groups living all over the country. Moreover, many

travel long distances, across whatever regional boundaries will be created, to reach their place of work. The federalism that is structured for South Africa should not make such mobility any more difficult. Nor should it restrict thereby the further integration and development of the whole economy.

South Africa should provide a free and democratic environment for any of its people in any part of the country. Indeed it was apartheid that tried to foster ethnic enclaves upon the society, and one of the reasons for its collapse was that it was incompatible with a modern industrializing economy. Moreover, if there is a silver lining in the apartheid experience, it is that it had the opposite effect -- it deepened people's sense of being, indeed their determination to be South Africans. I would not think the country would want to lose that spirit.

The balance between respecting ethnic differences which do exist and are indeed a matter of pride and importance to the people, on the one hand, and promoting a national spirit and a dynamic modern economy on the other, lies perhaps in the German model of federalism that gives more recognition to, and specific regional powers concerning cultural matters than does our Constitution. I believe that has already influenced the negotiators of the interim constitution.

Finally, we have a clause in our constitution that we did not apply correctly for almost two hundred years. It says that the United States will guarantee to every state in the union a republican form of government. As I noted earlier, we overlooked for far too long that some of our states, though conceived in liberty, were denying that liberty, and the rights of democracy, to large numbers of our citizens. Through the Fourteenth Amendment, and later by acts of Congress, we have sought to end those practices. A federal system in South Africa should also be one that ensures that each region enjoys the democracy that the people so long have been denied.

## CONCLUSION

In the debate over our Constitution two hundred years ago, what is striking is the depth of honor and conviction that were represented on both sides. Yes, there were people of questionable motive, and some who were interested in regional or power politics. But we did well to listen to those in the opposition who raised legitimate questions. As brilliant as the draft constitution was, the absence of a Bill of Rights was a fundamental flaw. The opponents did a great service to our country in bringing about those major amendments. Moreover, among the opponents were persons closer to the people, and with more faith in democracy, than some of those on the other side. They were noble opponents who loved their country every bit as much as those who drafted and fought for the Constitution.

In South Africa, there are among those arguing for a change in the process -- for some major changes in the drafts produced so far, for another look at the federal question -- persons who have a long history of fighting apartheid and advocating democracy. Their opinions deserve a very careful hearing. Compromises that strengthen the principles of liberty and democracy, moreover, are no concession but rather improvements, just as the Bill of Rights came to be seen by the original drafters of our Constitution.

There are, however, those questioning the process who are using the reference to these sacred principles as a cover for perpetuating undemocratic fiefdoms, whose record of rule under so-called independence does not square with any of the principles that are basic to democracy. Separating the true dissent from the false, the legitimate from the delaying tactics, is the greatest challenge to the negotiators in the coming weeks.

But as in our country in 1787, faced as we were then with economic calamity, the threat of rebellion, and the failure of existing government to be able to function, there comes a time to move forward. Some thought we were insane to move ahead so "fast" in 1787-88. But in retrospect, I cannot imagine where we would be today if we had not done so.

Democracy is a process, not guaranteed by a single document that must serve unchanged for all times, but reflective of a national spirit and a deep democratic impulse. Some of that is reflected in a constitution, but much of it grows with experience, good will, and patriotism. South Africans need to trust each other at least enough to start that journey and to do so in the coming year. The alternative is to risk losing it all.

Ref: 9/93

["1. Schedule 3 and Schedule 4 of the 1965 Consolidated\nFinance, and Finance over local government (primarily section\nindependence of devolved authorities), devolved civil services and\nspecific reference to the future of the central government overrule,\nthe subject of the above to be given to the framework, with", "2.1", "International mediation and resolved negotiation", "2.", "3. Before the following states will be explored through\nthe framework to be given to the framework, with", "THE SUBJECTS", "4.", "The panel shall be free to consult with any other parties as it might\nseek to be satisfied to it by the parties.\n\n5. The panel shall receive and consider such negotiations and proposals as\nthey are satisfied to be of use to the parties.", "5.", "The panel shall receive and consider such negotiations and proposals as\nthey are satisfied to be of use to the parties.", "BORDER", "8.", "It shall be understood that the panel shall not be an adjudicator but rather\nis to act as a facilitator in the formulation of an agreement between the\nparties.", "1.", "Following the Summit meeting between the State President, Mr N M Nkosi, Mr Mstadi, Mr Khatshwela, Mr Sotshwana and Mr Ntsu, the President, Mr Nkosi, Mr Mstadi, Mr Khatshwela, Goodwill, Mr Ntsu, Mr Nkosi, Mr Mstadi, Mr Khatshwela, Good

3

The panel may request such procedural and clerical assistance as it may be available to assist the panel, at its request.

The panel shall be free to assess all allegations at the panel as officers and law who shall be found to have committed a grossly serious offense.

The panel shall be informed in writing of the South African constitutional law and/or international law which shall be applied to the request.

3.

The panel will conduct a hearing to determine if the parties, one of them, is a citizen of South Africa.

7.

COMBINATION

The international adjudication effort shall also address the issues of the claims and demands of the Maltese, the King of the States, Nation, with the electronic rights.

6.

7.

8.

9.

10.

11.

12.

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PUBLISHED BY THE GOVERNMENT OF SOUTH AFRICA P.L.C.

APR 10 '94 03:05PM C B M HEAD OFFICE

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JOINT STATEMENT BY THE STATE PRESIDENT, MR F W DE KLERK,
HIS MAJESTY KING ZWELITHINI GOODWILL KA BHEKUZULU,
MR N MANDELA AND CHIEF MINISTER M G BUTHELEZI

Delegations led by the State President, Mr F W de Klerk, King Zwelithini Goodwill ka Bhekuzulu, Mr N Mandela and Chief Minister M G Buthelezi met today for several hours in the Kruger National Park.

The delegations discussed a number of issues, including the future constitutional accommodation of the Zulu monarchy, calls for Zulu sovereignty, the problem of violence, the state of emergency and proposals for international mediation.

The parties agreed on the necessity to make proper constitutional provision for the recognition of the Kingdom of KwaZulu and tabled substantial proposals in this regard. They agreed to establish a working group to deliberate further on these proposals and to report back to the respective leaders by Thursday next week.

The parties agreed that, on the subject of outstanding constitutional issues, international mediation should proceed in order to seek a constitutional settlement and political reconciliation. Urgent negotiations should take place to reach agreement on the terms of reference and the procedures to be followed.

A follow-up meeting date next week is foreseen to discuss the progress achieved in negotiations and to consider the implications arising from this.

His Majesty the King and the three leaders were unanimous in their condemnation of violence and of the known and hidden forces that are involved in fomenting violence. They made an urgent appeal to their followers and to all South Africans to end the killings, to exercise maximum restraint and to pursue their objectives by peaceful means.

KRUGER NATIONAL PARK

8 APRIL 1994

["SOUTHERN NATIONAL PARK", "EXECUTIVE OFFICER\nThe Executive Director and to be their object of bestowal means:\nmake an agent subject to their followees and to all Rights of the King to\nviolence and of the Crown and his forces thereon that are involved in foraging activities. They\nthe Majesty the King and the three leaders were uniminable in their condemnation of\nimprisonments and to confute the implications arising from this.", "A follow-up meeting date next week is scheduled to discuss the progress achieved in\nrelevance and the procedures to be followed.", "The parties agreed that, on the subject of outstanding constitutional issues, international\nintimations should proceed in order to seek a constitutional settlement and political\nconciliation. Urgent negotiations should take place to reach an agreement on the scope of\nintimations should proceed in order to seek a constitutional settlement and political\nconciliation.", "The parties agreed that, on the subject of outstanding constitutional issues, international\nagreements should be reached on the necessity to make further constitutional provisions for the\nrecognition of the Kingdom of KwaZulu and related administrative proposals in the regard. Today\nthe parties agreed on the necessity to make further constitutional provisions for the\nagreement of the Kingdom of KwaZulu and related administrative proposals in the regard. Today\nthe parties agreed on the necessity to make further administrative provisions for the\nagreement of the Kingdom of KwaZulu and related administrative proposals in the regard

African National Congress

51 Plein Street
Johannesburg 2001
P O Box 61884
Marshalltown 2107

Tel: (011) 330-7000

Fax: (011) 333-9090

Telex: 421252

INTERNATIONAL MEDIATION

TERMS OF REFERENCE (AS PROPOSED BY THE ANC)

Introduction

1.0 The African National Congress (ANC) and the Inkatha Freedom Party (IFP), hereinafter referred to as "the parties", have agreed to involve an international mediation panel in their negotiations, which panel shall assist in resolving a constitutional dispute that has arisen between the parties.

2.0 The dispute arose during the drafting of and has been occasioned by the inclusion and/or exclusion of various provisions in the Republic of South Africa Constitution Act 200 of 1993.

The Issues

3.0 The IFP submits that the Constitution is fatally flawed with regard to the objective of establishing a truly democratic constitutional order in South Africa, in that the Constitution does not provide for and does not entrench the autonomy of the provinces and therefore fails to ensure the establishment of a federal South Africa.

3.0.1 The IFP accordingly draws attention to various parts of the Constitution which, inter alia, concern such matters as:

3.0.1.1 The powers given to the provinces;

3.0.1.2 Fiscal and financial autonomy of the provinces;

3.0.1.3 Autonomy of the constitution-making process at the provincial level;

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3.0.1.4 The adjudicatory role of the Constitutional Court with regard to national and provincial constitution making;

3.0.1.5 Procedures for constitutional amendments and future stages of constitutional development with specific reference to the entrenchment of fundamental human rights, constitutional guarantees and provincial autonomy; and,

3.0.1.6 Provisions relating to the process of transferring existing functions and assets to the new provinces.

3.1 The IFP further submits that the constitutional settlement must accommodate the claims and demands of His Majesty, the King of the Zulus, with respect to the reinstatement of the powers, duties and privileges of the Zulu Monarch and the restoration of the Kingdom of KwaZulu, in the context of the implementation of the right of peoples to self-determination on a territorial basis.

3.1.1 The IFP believes that the mediators may assist to find a satisfactory agreement with regard to the matters stated in 3.2 above, notwithstanding that a deadlock may not yet have arisen and may not arise.

3.2 The IFP is convinced that the harm caused by the Constitution with regard to these matters is so grievous that the IFP has decided not to participate in the elections scheduled to be held in April, 1994 under the provisions of this Constitution.

4.0 The ANC submits that the said Constitution is consistent with and is expressive of the objective of the establishment of a united, democratic, non-racial, non-sexist South Africa, the realisation of which objective has been, from the beginning, the agreed aim of the multi-party negotiations, as reflected in the Declaration of Intent that was adopted at the first session of the Convention for a Democratic South Africa in December 1991.

4.1 The ANC further submits that though any party, including the ANC, may find that various elements in the Constitution are not to its liking, no grounds exist to reject the Constitution as a whole, on the basis that it is offensive to the achievement of the objectives contained in the said Declaration of Intent.

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4.2 The ANC further submits that no deadlock has arisen with regard to the matters relating to the Zulu Monarch and Kingdom. Therefore the need for mediation with reference to these matters does not arise.

4.3 The ANC further submits that in keeping with the agreement reached by Dr M G Buthelezi and Mr Nelson Mandela at their meeting on 1st March 1994, no matters other than those indicated above should be the subject of mediation.

4.4 The ANC further draws attention to the fact that the Constitutional Assembly that will be elected at the end of April 1994, will be competent to deal with all constitutional matters which any South African may wish to be addressed.

## Tasks of the Panel

5.0 The task of the Panel shall be to assist the parties to reach a negotiated agreement, as swiftly and expeditiously as possible, on the matters referred to above, having studied these matters and assessed them in the context of the transformation of South Africa into a non-racial and non-sexist democracy.

5.0.1 It shall be understood that the Panel shall not be an adjudicator but an agency dedicated to the facilitation of an agreement between the parties.

6.0 The Panel shall receive and consider such suggestions and evidence as may be submitted to it by the parties.

7.0 It shall be free to consult any other person(s) as it may decide.

8.0 It shall be free to request a meeting or meetings with the parties sitting together and/or propose any other procedure for the conduct of the negotiations.

- 4 -

Composition

9.0 The Panel will consist of seven individuals chosen by the parties, one of whom shall be the Chairperson.

10.0 The parties shall each be entitled to appoint two South African lawyers properly qualified in South African constitutional law and/or international law who shall be free to attend all meetings of the Panel as observers and be available to assist the Panel, at its request.

11.0 The Panel may request such technical and clerical assistance as it may need.

Funding

12.0 The mediation effort shall be funded through an independent trust established to receive donations and contributions from independent sources other than the parties.

12.1 Should such a trust be formed, it may include the leaders of the parties.

Media

13.0 Any media statements made during the process of the mediation shall be made with the consent of the Panel and the parties.

Other

14.0 The Panel shall hold its sessions in South Africa and at such venue(s) as it may agree with the parties.

MAR 31 '94 08:49PM SUE FELGATE

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N

"Democracy means freedom to choose"

INKATHA
Inkatha Freedom Party

IQembu leNkatha Yenkululeko

( Third draft )

INTERNATIONAL MEDIATION
TERMS OF REFERENCE

1. The African National Congress and the Inkatha Freedom Party [the parties], have agreed to hold negotiations under the auspices of an international mediation panel.

2. The mediation panel will consist of seven individuals chosen by the parties. The mediation panel is expected to supervise and guide the negotiation between the parties on the basis of these terms of reference.

3. The venue of the proceedings shall be in Cape Town, or other venue as decided by the parties on recommendation of the mediation panel.

4. The purpose of the negotiation is to achieve an all-inclusive constitutional settlement between the parties as a necessary condition for long-lasting peace, democracy and stability in South Africa. Therefore, an agreement is to be reached on the nature and contents of the constitution which will govern elections and the democratic transformation of South Africa.

5. The present Constitution, adopted in December 1993 and amended in March 1994, expresses a certain approach dealing with the problems and aspirations of South Africa.

5.1 An alternative approach has been expressed, inter alia, by the IFP.

5.2 During several months of intense negotiations it was not possible to find a mutually satisfactory way to reconcile this difference in approach.

5.3 The parties hope that through the mediation of the international panel a way to reconcile these differences and to reach a comprehensive constitutional settlement can be found.

6. In seeking to reconcile the IFP's approach with the terms and structure of the 1993 Constitution of the Republic of South Africa as amended, inter alia, the following areas will need to be explored through mediation and renewed negotiation:

President: The Hon. Prince Mangosuthu G. Buthelezi
National Chairman: Dr. F.T. Mdialose

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6.1 The extent of the powers to be given to the provinces, with specific reference to the issue of central government overrides, exclusivity, residual powers, judicial functions, entrenchment and integrity of provincial autonomy, provincial civil service and police, and jurisdiction over local government (primarily section 126, Schedule 6 and relating provisions of the 1993 Constitution).

6.2 Fiscal and financial autonomy of the provinces.

6.3 Preservation of provincial autonomy during future stages of constitutional development. Autonomy of the constitution-making process at provincial level.

6.4 The manner of verification of the Constitutional Court in national and provincial constitution making.

6.5 Final versus interim nature of the constitution with specific regard to the entrenchment of fundamental human rights, constitutional guarantees, and provincial autonomy. Procedures for constitutional amendments and future stages of constitutional development.

6.6 Process of rationalization and empowerment of the new provincial governments, with specific reference to certainty in the transfer of existing functions and assets to the new provinces.

6.7 Citizenship and residence requirements for active and passive electoral rights.

7. The international mediation effort shall also address the issues of the claims and demands of His Majesty the King of the Zulu Nation, with respect to the restoration of the Kingdom of KwaZulu, with specific regard to the right of self-determination of peoples on a territorial basis.

8. The international mediation may seek additional methods and procedures to solve outstanding issues of violence so as to set in place necessary conditions for a violence and intimidation-free election. In this respect issues such as no-go areas, private armies, chain-assassinations, arms caches, military training inside and outside the country, and other related issues may be addressed.

9. The purpose of the process of negotiations between the parties is to reach a constitutional settlement in time before elections so as to enable the IFP to enter elections timeously. The mediation shall also focus on:

9.1 required amendments to the 1993 constitution;

9.2 rationalisation of the electoral process;

9.3 timetables translating the terms of constitutional settlement into conditions for free and fair elections in which all parties can compete on an equal footing.

10. The mediation panel will be assisted by four qualified South African constitutional lawyers, two of them appointed by each of the parties may attend all meetings as observers. The panel may request additional technical and clerical assistance.

MAR 31 '94 08:50PM SUE FELGATE

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11. Each party may have a delegation of political representatives, advisers and support staff.

12. The procedure and structure of negotiations will be decided by the parties on the basis of recommendations by the mediation panel.

13. The parties shall not interfere with the work of the mediation panel, provided that any party may make submissions to the mediation panel. Any public statement of the mediation panel or of any of its members relating to the pending negotiations shall be issued with the advice and consent of all parties concerned.

14. Additional parties may join the negotiations, and the constitutional and electoral process.

15. The parties hope that the mediation panel may provide clarity and transparency to the process of negotiations. For this purpose the panel may ask for clarifications from any of the parties and may make recommendations to any of the parties to ensure good faith negotiations and negotiating positions consistent with stated objectives or with relevant factual or legal realities.

15.1 The parties hope that the mediation panel will facilitate discussions and guide negotiations as they best see it fit, provided that their effort shall not in any way contribute to the advancement of the negotiating position of any of the parties. In this regard, the panel is not expected to take a position on any of the issues being debated in the negotiations.

16. The parties agree that during the international mediation effort special consideration will be given to the need to avoid any action or statement which could have a bearing on the negotiations and on the discussions.

16.1 The parties agree to negotiate, if necessary, on a daily basis and to do whatever is in their power to expedite the negotiation process. The mediation panel is expected to promote this agreement and to ensure that negotiations move swiftly and expeditiously. The parties commit themselves not to cut negotiations short or to unilaterally impose deadlines on the process. With the advice of the mediation panel the parties may agree to alter statutory deadlines for electoral purposes and the election date.

17. Funding for the international mediation effort will be dispersed from an independent trust established to receive donations and contributions from independent sources other than the parties.

17.1 The trustees will include the leaders of the parties. Inter alia, the trust will cover expenses related to the mediation panel and the lawyers referred to 10 herein.

----------------0-----------------

*5872.5

MAR 31 '94 08:52PM SUE FELGATE

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INKATHA FREEDOM PARTY
A PRELIMINARY AND INTRODUCTORY SUBMISSION
FOR INTERNATIONAL MEDIATION

## I - Purpose of Mediation

The purpose of this international mediation is *not* to determine who is right and who is wrong.

The purpose of this international mediation is not to assess the merits or demerits of the 1993 Constitution as amended. Moreover, the purpose of this mediation is *not* to determine whether the 1993 Constitution is "sufficiently democratic" or is otherwise flawed when assessed against any abstract constitutional model.

The purpose of this mediation is to identify the parameters of a possible constitutional settlement between the parties which can open the way to a broader political reconciliation.

The purpose of this mediation is also to ensure that once a constitutional settlement has been achieved, the IFP can rejoin the institutional process of the transformation of South Africa by participating in elections. The IFP's participation in elections must be on an equal footing with the other political contenders and therefore a constitutional settlement is to be reached in time before elections so as to enable the IFP to enter elections timeously. In this context, the issue of the election date will need to be analysed and mediated on as a matter of priority.

The purpose of this mediation is to look objectively and without evaluative purposes at the difference in positions between the IFP and the constitutional framework expressed by the 1993 Constitution as amended. This exercise is to be conducted on the basis of a limited number of items which have been identified in the terms of reference and are discussed below.

The purpose of this mediation is to try to develop solutions to be translated into constitutional amendments before elections. These solutions are meant to bridge the gap between the IFP demands and the 1993 Constitution. The IFP has submitted that this gap can be bridged by virtue of the amendments contained in the IFP's Yellow Paper, as amended¹. The mediation effort may identify other ways and means or solutions of a different type.

## II - Power of Mediators

International mediation is *not* international arbitration.

It has been agreed that the parties to the mediation will remain in control of the process.

It has been agreed that the role of the mediator is not to develop a plan, or to make proposals, but to assist and facilitate in the process of negotiations between the parties.

## III - IFP's Position

It must be considered that the IFP has a broad range of fundamental objections to the 1993 Constitution, which range from the form of government, which the IFP would have wanted to be more parliamentary, to the Bill of Rights.

¹ The Yellow Paper was submitted by the Freedom Alliance on December 19, 1994. The Yellow Paper was amended in February to reflect the amendments to the constitution submitted by Multiparty Negotiations Process. This amended version of the Yellow Paper, which is the one referred to in this document and in other IFP documentation submitted in the mediation, is also known as the Red Paper.

MAR 31 '94 08:53PM SUE FELGATE

P.10

of Rights, the provisions on the presidency and the cabinet, the judiciary, and many other issues which are only briefly summarised in the IFP documentation supplied to the mediators as background material.

The IFP has accepted that the great majority of its objections to the Constitution will not be raised during the mediation effort, which will be limited to the few issues raised in the terms of reference. However, it must be kept in mind that the reduction of the constitutional differences between the IFP and the ANC to such a list of issues has been the result of over nine months of negotiations.

It also must be kept in mind that the Yellow Paper is itself the result of over nine months of negotiations in which the IFP has dramatically reduced its demands to seek reconciliation and compromise within the constitutional framework of the 1993 Constitution. In this respect the Yellow Paper is already a final package of bottom line positions. This is reflected by the fact that the IFP is bound by the resolution of its Special General Conference instructing the IFP's President and Central Committee not to participate in elections unless all the Yellow Paper's demands were translated into amendments to the 1993 Constitution.

## IV - All-Inclusive Solution

The issues identified in the terms of reference and in the Yellow Paper have a special importance.

The IFP believes that the core of the political settlement amongst all major political parties is to be entrenched in the Constitution and can not be adopted or changed by majority rule. Accordingly the IFP believes that while a majority could have a final say on other parts of the Constitution, the issue of the "form of state" should be the result of a broad consensus and should not be reopened for negotiations and decided by majority rule after elections.

After one year of negotiations the central-core elements of the political compromise have been now identified in detail and are related to two issues - the "form of state" and the "process". The IFP has demanded a final constitution establishing a federation of states. The 1993 Constitution establishes a unitary state with some provincial characteristics and empowers a Constituent Assembly charged with the task of redrafting the constitution.

Because of these characteristics in the Constitution the IFP cannot identify itself with it, nor can it participate in the electoral process established under such a constitution. Bridging the existing gap will allow the IFP to have a stake in the constitution and recognise that it has expressed through compromises an all-inclusive solution.

## V - The Kingdom of KwaZulu

In addition to the constitutional issues the international mediation shall focus on the claims and demands of His Majesty the King of the Zulu Nation, which the IFP fully supports. The enclosed documentation speaks for itself regarding such claims and demands.

The International mediation shall determine whether His Majesty's claims and demands can be recognised and accommodated within the effort of reconciling the IFP's positions within the framework of the 1993 Constitution, and related solutions, or should be recognised and accommodated differently.

## VI - Powers of Provinces

The IFP demanded that provinces (member states) be the primary government of the people exercising all residual powers. Only those powers which could not adequately or properly be exercised at provincial level ought to be devolved upwards to the central government.

2

MAR 31 '94 08:54PM SUE FELGATE

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The 1993 Constitution gives to the provinces a very limited number of powers, most of which are of a municipal nature. Even important powers given to regions in "regional" rather than federal systems are reserved to the central government. Provinces have no exclusive competence on local government or their own police and civil service. All the provincial powers are not exclusive but concurrent, which means that in a province there may be national schools, hospitals and housing programmes side by side with provincial ones.

The Yellow Paper's compromise consists of a list of exclusive central government powers and a list of exclusive provincial powers with concurrency on the residual powers. Additional mechanisms are provided to allow for asymmetry and to ensure proper checks and balances.

## VII - Relation between central and provincial government

The IFP demanded that provincial powers are not subject to overrides from the central government. Following the federal system the IFP adopted a system of checks and balances which allows for federal interferences within the exercise of the area of jurisdiction given to the federal government by the constitution.

The 1993 Constitution provides for 21 overrides. These overrides are extremely broadly worded and can apply to almost any conceivable situation. The overrides will allow the central government to extend the regulation of national schools, hospitals and housing programmes to the provincial ones.

The Yellow Paper's compromise consists of the acceptance of the concept of overrides with some minor exclusions. These overrides will apply to the exclusive powers of provinces. A different mechanism or concurrency is provided for those powers which are concurrently exercised by the provincial and national government.

## VIII - Provincial Fiscal Autonomy

The IFP demanded that provinces have residual taxing power and that the power of taxation of the federal government be subject to a system of checks and balances.

In the 1993 Constitution provinces are entitled only to those revenues which will be transferred to them by the national Parliament. Their original taxing powers are limited to turnover taxes on casinos, gambling, wages, lotteries and betting. Even user charges, such as tuition fees in provincial schools can be determined only with the involvement of the Financial and Fiscal Commission. Provincial finance is audited by the central government.

The Yellow Paper's compromise consists of recognising residual taxing powers to be exercised with the involvement of the Fiscal and Financial Commission. Provinces audit their finances autonomously.

## IX - Entrenchment

The IFP demanded a final constitution amendable only by virtue of standard reinforcement procedures.

The 1993 Constitution is an interim one and empowers a Constituent Assembly with the task of drafting a new constitution which can be adopted in three months by a 50% plus one majority subject to a 60% majority at a referendum.

The Yellow Paper's compromise consists of the elimination of the time-frame for the adoption of a new constitution and for the entrenchment of the chapters on human rights, Constitutional Court and provincial boundaries, powers and functions which can be modified only by means of special majorities and can not be reduced in terms of protection and guarantees.

X - Other Issues

The provisions on rationalisation are related to the fact that provincial powers are concurrent and allow the central government to have discretion in deciding which of the present assets and laws under the control of provinces, self-governing territories and TBVC states are to be transferred to the new provinces. This would allow the national government to decide which schools, hospitals and housing programmes would be national and which would be provincial. The Yellow Paper's amendments would transfer to the provinces all the assets and laws within their area of jurisdiction.

The Yellow Paper's amendments ensure that the role of the Constitutional Court in verifying compliance with the rules for future national and provincial constitution-making is exercised in a jurisdictional fashion, i.e. on the basis of received evidence and argument.

The Yellow Paper's amendments ensure that the constitution drafted by the Constituent Assembly is a rigid one justiciable by a Constitutional Court so as to prevent the reintroduction of the Westminster system.

The Yellow Paper's amendments ensure that provincial candidates are resident in the province and that only South African citizens can vote in elections.

The Yellow Paper's amendments ensure an area of protective constitutional autonomy for economic, social and cultural formations so as to preserve and promote economic, social and cultural pluralism.

The Yellow Paper's amendments ensure that the office of Members of Parliament is not terminated upon termination of membership of the political party which elected them.

7309

APR 06 '94 10:15PM SUE FELGATE

P. 1

INKATHA

Inkatha Freedom Party

IQembu leNkatha Yenkuleko

'KwaPhindangene'
PO Box 1
Mahlabathini 3865

Tel: 0358-202016
Fax: 0358-202070

Dr. Henry A Kissinger
Kissinger Associates
350 Park Avenue
New York, NY 10022-6022

April 4, 1994

Ref:*7315

Facsimile: 091-212-759-0042

Dear Dr. Kissinger:

I am in receipt of your kind letter dated March 31, 1994.

During the discussions between the IFP and the ANC delegation the secretariat of the International Mediation Forum [IMF] raised the concern that you would not participate in the mediation effort unless the IFP and the ANC reached a final agreement on one set of terms of reference. The secretariat of the IMF was also under the impression that another designated mediator had taken such a position. Acting under this impression, the IFP and the ANC delegation decided to delay the beginning of mediation for one week, which fact was reflected in the letter faxed to you yesterday.

I did not read your letter which referred to the desirability of narrowing the terms of reference as setting forth a precondition for your participation in the International Mediation Forum. I also understand that no further communication between yourself and the secretariat of the IMF has taken place on this subject matter. Upon investigation it also seems to me that no other designated mediator has clearly indicated his unwillingness to participate in the mediation effort until or unless the IFP and the ANC agree on a different set of terms of reference.

We all would have wished that the mediation could turn around one or two simple issues defined by a single document expressing the terms of reference. Unfortunately, the terms of reference, as you received them, express the range of fundamental issues on the table which we must solve to reach a constitutional compromise and a political reconciliation in this country. You will appreciate that the limited number of issues set forth in the terms of reference is the result of over one year of negotiations which successfully narrowed the initial number of outstanding issues to a set of minimum and essential ones.

President: The Hon. Prince Mangosuthu G. Buthelezi
National Chairman: Dr. F.T. Mdielose

APR 06 '94 10:16PM SUE FELGATE

Dr Henry A Kissinger

April 6, 1994

Page 2

The two sets of terms of reference you received express a great deal of consensus and are substantially identical as far as the object of the mediation is concerned, viz.: the list of constitutional issues and the claims of His Majesty the King of the Zulu Nation. There are however two significant differences between the two sets of terms of references. These differences relate to the purposes and the parameters of the mediation. Both the IFP and the ANC are dramatically aware of these differences and we hope that they can be reconciled at the outset of the mediation process through your effort and the effort of the other mediators.

At this juncture it is of fundamental importance that mediation begins as soon as possible, for any further delay could severely jeopardise whatever chance we have left to reach a constitutional and political settlement in this country. Today, we would appreciate knowing whether any obstacle to your participation exists with reference to the terms of reference or any other matter.

I am sending a copy of this letter to the other designated mediators to clear any possible misperception raised during communications with the secretariat of the IMF about the terms of reference and your position in this respect.

Copied to:

Justice Bhagwati
Lord Carrington
Judge Higginbotham
Professor Kevenhorster
Justice La Pergola
Professor Laponce

Secretariat of the IMF

MAR 31 '94 04:42PM C B M HEAD OFFICE

P.2

African National Congress

Tel: (011) 330-7273
(011) 330-7052
Fax: (011) 333-7739
Telex: 421252

OFFICE OF THE PRESIDENT

31 MARCH 1994

DR HENRY KISSINGER
350 Park Avenue
New York, N.Y.
10022

Dear Dr Kissinger

RE: INTERNATIONAL MEDIATION FOR A DEMOCRATIC SOUTH AFRICA

The Inkatha Freedom Party and ourselves have agreed to submit our differences on
constitutional matters to a panel of mediators in a serious attempt to resolve them.

We have therefore also agreed on the composition of the panel and the procedures
for mediation.

It gives me great pleasure to inform you that we believe that you can make an
important contribution to this mediation effort. We would therefore be greatly
honoured if you would accept our humble request to you to serve on the mediation
panel.

The other persons who will be approached to serve on the panel are:

The People Shall Govern!

28/03 '94 16:17

FELGATE

001

[Y]

INKATHA
Inkatha Freedom Party

IQembu leNkatha Yenkuleko

Dr Henry A. Kissinger,
350 Park Avenue
NEW YORK, NY
10022

FAX NO: 09 1 212 759 0042

Dear Dr Kissinger

March 28, 1994

Ref. *5881.1

Re: International Mediation for a Democratic South Africa

The African National Congress and the Inkatha Freedom Party have agreed to submit their differences on constitutional matters to a panel of mediators in a serious attempt to resolve them.

The two organisations have agreed to the composition and the procedures for mediation and have both agreed that you should be invited to be one of the mediators.

You will be receiving an invitation from both myself and Mr Nelson Mandela who will be writing to you under separate cover.

It gives me great pleasure to invite you to participate as a member of a panel of seven mediators in our constitutional negotiations for a democratic South Africa, on behalf of the Inkatha Freedom Party.

* Lord Peter AR Carrington
* Justice Antonio La Pergola
* Justice HK Bhagwati
* Prof Paul Kevenhorster
* Prof La Ponce
* Mr A. Leon Higginbotham, Jr

Your selection was a joint decision by both the African National Congress and the Inkatha Freedom Party.

28/03 '94 16:18

FELGATE

003

INKATHA
Inkatha Freedom Party

IQembu leNkatha Yenkuleko

TO ALL MEDIATORS

In discussing the Terms of Reference, the Inkatha Freedom Party and the African National Congress came to the conclusion that it would be advisable for both parties to separately submit their own proposed Terms of Reference to the Mediators.

The attached Terms of Reference drawn up by the IFP, with minor amendments, have been discussed with the ANC. The ANC has received a courtesy copy.

Important aspects of the Terms of Reference will be drawn up in part to reflect the definition of the problems which led to the breakdown in negotiations between the IFP and the ANC. Quite clearly the two parties have different views on the reasons for the breakdown in negotiations and could therefore not easily agree upon the wording.

We are confident that this agreed to approach will assist the mediation process.

5881

National Chairman: Dr. F.T. Mdalose

APR 05 '94 01:29PM C B M HEAD OFFICE

P.1

International
Mediation
Forum

5 April 1994.

Dr Henry A. Kissinger
350 Park Avenue
New York, N.Y.
10022

Dear Dr Kissinger

The Joint Planning Committee of the ANC and IFP working on the international mediation met last night, 4 April 1994, to consider the recommendation made by a number of mediators that closer agreement should be sought on the terms of reference for the mediation.

It was resolved to delay the start of the mediation until the evening of Tuesday, 12 April (SA time). It is hoped that the Leaders Summit (Dr Buthelezi, Mr de Klerk, Mr Mandela and Zulu King Goodwill Zwelithini) to be held this Friday/Saturday will be a forum in which greater consensus on the Terms of Reference and purpose of the mediation can be sought. A meeting of the Joint Working Committee will then be held on Sunday, 10 April, to assess progress, whereafter we will advise you whether the Mediation can proceed. Our office will in the interim rearrange your travel bookings and advise you accordingly.

At this stage, the mediation is not envisaged to continue beyond the 22 April despite the
delayed start date.

The Secretariat and parties remain committed to the process and apologise for any
inconvenience that this will cause you, but we have to appeal nonetheless that pending the
decision on Sunday, you keep your diary free for the period 11 to 22 April in the event that
a decision to go ahead with the mediation is taken. You will be advised on Sunday, 10 April,
as soon as a decision is taken, whereafter it will be necessary to travel within a matter of the
next 24 hours.

(011) 614-2213

FAX: (011) 618-2079

PG Centre, 322 Main Road, JEPPESTOWN

APR 07 '94 04:57AM C D M HEAD OFFICE

P.1

International
Mediation
Forum

FACSIMILE MESSAGE

TO: SUZANNE S. MCFARLANE
EXECUTIVE ASSISTANT TO DR H.A. KISSINGER

FROM: COLIN COLEMAN
DIRECTOR: SECRETARIAT
INTERNATIONAL MEDIATION

Dear Suzanne

Further to our telephonic conversation today the 7th April, I would like to confirm in writing points raised in the discussion. We are, of course, delighted that Dr Kissinger is prepared to attend the International Mediation subject to the meeting on Sunday of the IFP/ANC Joint Working Committee agreeing to move ahead with the mediation. Please note the following:

1) I will call Dr Kissinger personally at 13h30 on Sunday, 10 April 1994, to indicate the decision of the Parties whether or not to move ahead with the mediation.

2) Former Ambassador, George Trail, working with me in the Secretariat is the person you should liaise with regarding security. He is contactable on (011) 614-2213 (Work) or (011) 787-5432 (Home). As explained telephonically we would prefer, for financial reasons, to provide security for Dr Kissinger. Our proposal is to provide a 24 hour guard for Dr Kissinger from his arrival until his departure. We are using Fidelity Security, a leading private Security firm for security outside the meeting venue and Anglo American Corporation Security for security at the venue.

3) The Consultative Business Movement has been jointly contracted by the IFP and ANC to provide all arrangements as the Secretariat to the mediation process. As Executive Director of the CBM, I am heading the International Mediation Secretariat and can be liaised with on all matters. As explained the venue, which we are keeping strictly confidential, will be Anglo American's Mbulwa Estate. All catering and accommodations for the period of the mediation will be provided (13 April to 22 April, 1994) at Mbulwa.

(011) 614-2213

FAX: (011) 618-2079

APR 07 '94 04:57PM C D M HEAD OFFICE

P.2

Page : 2

On arrival in Johannesburg on Tuesday, 12 April 1994, Dr Kissinger will be met and ferried to the Carlton Hotel where he will stay overnight. A social function for leading South African Dignitaries will be held from 18h00 to 20h00 on Tuesday evening. Early on Wednesday, 13 April, all Mediators and the Parties will be flown by executive helicopter to Mbulwa Estate. Should the Mediators require to discuss anything with anybody directly, where appropriate, such person/s will be flown to the venue.

4) Please remind Dr Kissinger that the venue has tennis and swimming facilities and is in the vicinity of game parks. Mbulwa has no malaria, but should Dr Kissinger visit a game park, malaria precautions would need to be taken. Attire will be informal. As evenings are likely to be cool and days mostly warm with a possibility of occasional showers, he should prepare his bags accordingly.

5) We are in contact with the Carnegie Foundation to explore whether they will cover the cost of air transportation. As discussed, you should book Dr Kissinger's flight and we will reimburse you from whatever source we secure.

Once again, allow me to indicate our gratefulness that Dr Kissinger is prepared to participate in the Mediation and hope that outstanding matters are resolved so that the Mediation can forge ahead. I appreciate that Dr Kissinger's schedule is very tight and look forward to his participation in what will be a historic event.

Kind regards

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A. Leon Higginbotham, Jr.

Paul, Weese, Rifkind, Wharton & Garrison
1245 Avenue of the Americas
New York, NY 10019-6064
(Office) (212) 373-3135
(Facsimile) (212) 373-2315

A. Leon Higginbotham, Jr. is of counsel to Paul, Weese, Rifkind, Wharton & Garrison in their New York and Washington offices and in September 1994 will become a professor at Harvard University teaching in the Faculty of Arts and Science, the Law School and the John F. Kennedy School of Government. Until he retired on March 5, 1993, he served as Circuit Judge and as Chief Judge Emeritus of the United States Court of Appeals for the Third Circuit. He was appointed a district court judge in 1964 and a court of appeals judge in 1977. A graduate of Antioch College and Yale Law School, he has taught as an adjunct professor at the law schools of Harvard, University of Michigan, New York University, University of Pennsylvania, Stanford and Yale. By appointment of President Johnson, Judge Higginbotham served as vice chairman of the National Commission on the Causes and Prevention of Violence. Chief Justices Warren, Burger and Rehnquist appointed him to a variety of Judicial Conference committees and other related responsibilities. In 1962, President Kennedy appointed him as a Commissioner of the Federal Trade Commission. He is a former President of the Philadelphia NAACP. He has served previously as a Commissioner of the Pennsylvania Human Relations Commission, an assistant District Attorney and a Special Deputy Attorney General. He has received more than 60 honorary degrees. His book, *In the Matter of Color: Race and the American Legal Process*, has received several national and international awards and he is the author of more than forty published articles. Judge Higginbotham is writing two additional books in his *Race and the American Legal Process* series, one book on Race and the American and South African Legal Process and an autobiography to be published by Knoff.

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1961-1962: Commissioner, Penna. Human Relations Commission

1960-1962: Special Hearing Officer (Conscientious Objectors' matters) for the U. S. Department of Justice.

1956-1962: Special Deputy Attorney General, Commonwealth of Pennsylvania.

1953-1954: Assistant District Attorney, Philadelphia County, Philadelphia, Penna.

1952-1953: Law Clerk, Justice Curtis Bok

## HONORS

Has received more than fifty local, regional and national honors, some of which include:

One of the Ten Most Outstanding Young Men in America, U. S. Chamber of Commerce. Other recipients have included the late President John F. Kennedy, the late Senator Robert F. Kennedy, Leonard Bernstein, Orson Welles and Dr. Tom Dooly.

Outstanding Young Man of the Year, Philadelphia Chamber of Commerce.

Outstanding Young Man in Government, National Arthur S. Flemming Award.

National Human Relations Award, National Conference of Christians and Jews, Inc.

William C. Menninger Memorial Medallion, Menninger Foundation, Topeka, Kansas. (Second recipient).

Samuel S. Fels Award, School District of Philadelphia.

Russwurm Award, National Newspaper Publishers Association.

Annual Brotherhood Award, presented by Congregation Rodeph Shalom of Philadelphia (to an outstanding American who has dedicated himself to the principles of brotherhood and fellowship).

Outstanding Layman of the Year, YMCA of Philadelphia and vicinity.

Yale University, Law School, Citation of Merit Award (highest award to be granted an alumnus).

Martin Luther King Award for outstanding service in the field of human rights, The Educator's Roundtable, Philadelphia, PA.

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ASSOCIATIONS

(Past and Present)

Trustee: Thomas Jefferson University, Philadelphia (1966-1978)

Trustee: University of Pennsylvania, Philadelphia

Director: Christian Street Branch YMCA (Philadelphia)

Director: Philadelphia Urban Coalition (1969-1974)

Director: WHYY

Board of Advisors: Institute for Correctional Law, Villanova School of Law

Fellow: American Bar Foundation

Member: Board of Overseers, Univ. of Pennsylvania Law School

PUBLICATIONS OF A. LEON HIGGINBOTHAM, JR.

Judge Higginbotham has published more than 50 articles in major scholarly journals. His book, IN THE MATTER OF COLOR: *Race and the American Legal Process: The Colonial Period* (Oxford University Press, June, 1978), has received several national awards including:

* Silver Gavel Award, American Bar Association National Bar Association Literary Award
* Frederick Douglass Award of the National Association of Black Journalists Book Award of the National Conference of Black Lawyers

It has been a selection choice of the Lawyer's Literary Guild and the MacMillan Book Club, and has been featured in David McCullough's "Eye on Books" in the November, 1978 Book-of-the-Month Club News.

Judge Higginbotham is writing two additional books in his *Race and the American Legal Process* series to be published by Oxford University Press and an autobiography to be published by Knopf.

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LA PERGOLA Antonio, (On., Prof., Avv.),
member of the European Parliament
born Catania, Nov. 13, 1931
a.: c/o Parlement Européen,
97-113 Rue Belliard, B-1047 Bruxelles.
Tel.: (0032 2) 2842111; Palazzo Chigi,

Piazza Colonna 370, 1-00187 Roma.
Tel.: (06) 6779
edu.: degree in law, Univ. of Catania;
qualified solicitor; specialisation in Great
Britain, Holland and USA
car.: former prof. Univ. of Padua,
Bologna and Rome, and in Argentina and
America; former dir. CNR's Institute of
Regional Studies; 1978, elected mem.
Superior Council of the Judiciary; 1978,
judge at the Constitutional Court;
1986-87, pres. Constitutional Court;
1987-March 1988, minister (without
portfolio) of EEC policies (Gorla
government); April 1988-May 1989, same
post (De Mita government); June 1989,
elected to the European Parliament,
S-Socialist Group; chmn. Committee on
Energy, Research and Technology,
substitute Committee on Institutional
Affairs and mom. Delegation for Relations
with the Countries of Central America and
Mexico; since 1992, mem. Committee
on Energy, Research and Technology,
chmn. Committee on Culture, Youth,
Education, and the Media, substitute
Committee on Institutional Affairs, mem.
Delegation for Relations with the
Countries of Central America and Mexico,
and substitute Delegation for Relations
with the Mashreq Countries in the EP.
* See Survey: Political Life - The European
Community

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ANTONIO LA PERCOLA

Born in Catania (Sicily, Italy) on November 13, 1931

Married to Anna Rosa BIANCHI
Father of three daughters.

Home address:

Via Bracciano, 46 ROME.

office telephone (Rome): 06-6640782

EDUCATION AND ADVANCED STUDIES

Degree in Law (Dottore in Giurisprudenza)
with 110/110 "lode e dignita di stampa",
University of Catania (1951).

Master's Degree in Law from Harvard University (1955).

First place in national competition for "libera
docenza" in Public law at the University of Bologna
(1967).

Advanced studies on scholarships or special grants at
various universities: Edinburgh (1953), Salzburg
Seminar on American studies (1954), Harvard
(1955-1961), The Hague Academy in International Law
(1959) and has carried out research at Oxford at the
Sodalian Law Library, Rhodes House (1966-1968) and
Christ Church (1968), and the Max Planck Institute at
Heidelberg (1970/70/80).

ACADEMIC CAREER IN ITALY AND ABROAD

Associate Professor of Public Law at the University
of Bologna (1959-1963).

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First place in national competition for Chair of
American Government at the University of Padua, where
he founded and directed the Institute for
Anglo-American Studies (1967-1969).

Special Lecturer on International Law at the Military
Academy of Modena (1963).

Professor of Constitutional Law at the Law Faculty of
the University of Padua (1967-1969).

Professor of Constitutional Law at the Law Faculty of
the University of Bologna (1969-1973).

Professor of Comparative Constitutional Law at the
Faculty of Political Science of the University of
Rome (1973-1974).

Professor of Public Law and Government at the Faculty
of Law of the University of Rome since 1974.

Member of the International Academy for the Study of
Comparative Public Law, Washington, D.C.

Honorary Member of the National Academy of Argentina
in Cordoba (Moral Sciences).

Member of European Academy, Cambridge, England.

Co-Editor of "Diritto e società", a leading quarterly
law periodical in Italy.

Academic experience abroad and in foreign institutions:

- Visiting Lecturer and subsequently Professor of
Comparative Government and International law and
Organization at The Johns Hopkins Bologna Center
(1955-1975).

- Senior visiting scholar in the United States upon
invitation of the American Council and Learned
Societies (1965).

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- Visiting Scholar in Great Britain upon invitation of the British Council (1960).

- Professor of International Law at the Diplomatic School of Madrid (1968).

- Invited to teach International Law and Organization at the Faculty of Political Science of the University of California at Los Angeles (1969) (unable to accept).

- Visiting Professor of Constitutional Law at the Faculty of Law at the University of Dublin (1973).

- Special visitor, Universities of Sydney, Arihano and Canberra upon invitation of the Australian Government (1976).

- Distinguished Fellow, The Johns Hopkins University (1981).

- University Adjunct Professor of Comparative Constitutional Law, Johns Hopkins University (1987).

- Brazil-Ame International Award Recipient (1988).

- Invited to lecture as a special senior guest and visiting Professor by loading Canadian and U.S. Universities (Princeton, Virginia at Charlottesville, Michigan Law School) after completion of term as Chief Justice of the Italian Constitutional Court. Appointment As Cabinet Minister precluded acceptance (1968).

- Distinguished Professor, National University of Mexico (1988).

- Honorary Professor, University of Externado of Bogota Colombia (1980).

- Honorary Professor, National University of La Plata, Argentina (1988).

- Doctor of Law 'honoris causa' Universidad Computense de Madrid (1989).

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- Doctor of Law 'honoris causa' University of Lisbon
(1993).

PROFESSIONAL AND OTHER EXPERIENCE

- member of the Italian bar since 1954.

- Contributor as Journalist to various daily newspapers and weekly periodicals on a variety of topics.

- Member of the expert committee which drafted the Constitutional Charter of the Region Emilia-Romagna (1971).

- Advisor to the Italian Chamber of Deputies.

- Counsel to the Law Office of Samuel Pisar (Paris) (1962-1976).

- Member of the Italian delegation to the European Conference on the Teaching of Law (1970-1974).

- Member of the San Marino Government Committee which drafted the Bill of Rights of the Republic of San Marino (1974).

- Director of the Institute on Regional Studies at the National Research Council, Italian Prime Minister's Office (1973-1976).

- Member of the Committee for Local and Regional Governments, Ministry of Regions (1976).

- Special Advisor to the Association of Spanish Lawyers for the adoption of the new Spanish Constitution, and Rapporteur on political parties and regional government at the Conferences of Salamanca, Madrid, Sevilla and Tenerife (1977-1978).

- Elected by both Houses of the Italian Parliament, Member of the High Council for the Judiciary (1976), Chairman of the Council's Committee on Rules of Procedure.

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- Member of the Expert Committee on Human Rights of the European Community (1977).

- Justice of the Italian Constitutional Court, appointed by the Head of the State in 1978 to serve a nine-year term.

- Member of the Delegation of the Italian Constitutional Court to the International conference of Constitutional Courts in Lausanne (1981) and participant in official visits to the Supreme Court of the United States (1980, 1982, 1986) the British House of Lords (1981) and the Supreme Court of Canada (1982).

- Appointed Vice-President of the Italian Constitutional Court (February, 1986).

- Elected President of the Italian Constitutional Court (1986-1987).

- Minister for European Affairs in the Italian Government from July 1987 to July 1989.

- Member of the European Parliament, elected in June of 1989.

- Chairman of the Commission on Energy and Research and Technology of the European Parliament (1989-1991).

- President of the European Commission for Democracy Through Law of the Council of Europe "The Venice Commission", an expert international body established under the auspices of the Council of Europe to advise and assist emerging democratic states -especially those in Central and Eastern Europe- in the drafting of their constitutions and in their democratic development (1989-).

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- Chairman of UNIDEM (1991-), UNIDEM is a UNIVERSITY program that consists of high level seminars on the science and technique of democracy held at major western and Eastern European academic institutions.

- Chairman of the Commission on Culture, Youth, Education and Sports of the European Parliament (1992-).

☑007/012

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- President of the Italian Association of Constitutional Lawyers (1991-).

He has played significant roles in numerous conferences on Constitutional Law, Comparative Law and Political Science, such as:

Rapporteur at official Conferences on Constitutional Justice in Mexico City (1982), Bogotá (1983), Warsaw (1983) and Belgrade (1983).

Salmond lecture given to British Law Society, London (1963).

Rapporteur at the International Conference on Human Rights, La Plata, Buenos Aires, Argentina (1984).

Co-Moderator along with Justice Harry Blackmun of the United States Supreme Court at the Aspen Seminar on Constitutional Justice and Society, Rome (1986).

President of Conference of Constitutional Lawyers, Padua (1986).

Chairman, Special Conference of Chief Justices of Supreme Courts and Presidents of Constitutional Courts on Cultural and Informational Exchange Palermo (1986).

President, International Committee of the Italian-American Association of Jurists (1986-).

As Justice, Minister and scholar, he has actively contributed to the solution of problems that concern European integration. In 1984, he was the rapporteur at the Italian Constitutional Court for the decisive judgement that established the prevalence of European Community law over incompatible national legislation. In 1989, as Minister for European Affairs, he proposed a bill later enacted as the "La Pergola Act" thanks to which Italy's heavy backlog in implementing Community directives has been largely remedied. The "La Pergola Act" has become widely known throughout the

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European Community as a model for adapting national legislation to Community obligations.

He has also been engaged in the promotion of political pluralism, free institutions, and the rule of law in the new democracies that have arisen in Europe and the area once covered by the Soviet Union. His efforts led to the establishment of the Commission for Democracy through Law, otherwise known as The Venice Commission, which he has chaired since its inception in 1989. The Commission has grown into an authoritative expert body whose activity is an important addition to the institutional work of the Council of Europe. Due to the interest in the Commission among non-European nations, its field of action now extends beyond that of the Council's. Between full and associate members as well as observers such as Canada, the United States, Japan, and the Holy See, the Venice Commission is a unique experience that makes available the collective legal resources of Europe to the increasing number of countries that have sought its assistance.

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- Rapporti fra Stato e Regione, 1975.

- Il "Cooperative Federalism": entra in scena il New Deal, Scritti in onore di Mortati, 1977.

- La Costituzione Spagnola, Bologna 1978.

- La Giustizia costituzionale. Hans Kelsen (Italian Edition) 1981.

- Atti sul Convegno di Torino sulla giustizia costituzionale, 1983.

- Constitucion del Estado y normas internacionales Mexico, 1983.

- Poder Exterior y Estado de derecho Salamanca, 1985.

- With Patrick Del Duca, "Community Law, International Law, and the Italian Constitution". American Journal of International Law - July 1985. German edition in Teutachart fur Zidler.

- Tecniche costituzionali e problemi dalle autonomie "Garantite" Padova, 1987.

- "Squarzo sul federalismo ed i suoi dintorni" in Diritto e Societa, 1992.

- "I'Unione Europea fra il mercato comune ed un moderno tipo di confederazione. Observazioni di un costituzionalista" in Rivista Trimestrale di Diritto e Procedura Civile, 1993.

- A new book is being published in Spain by the Centro de Estudios Constitutionales on Federalism and related topics.

- A number of minor articles, reports and essays not listed above published in Italian newspapers and in legal periodicals in Italy, Spain, Brazil, Portugal and Germany.

- 9 -

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MAJOR PUBLICATIONS

- Monographs and other writings in Italian, English and Spanish include:

- Studies in Public Law. 1959.

- Costituzione e Adattamento dell'ordinamento interno al Diritto Internazionale. 1961.

- Sistema Federale e "compact Clause". 1961.

- La delegazione legislativa nell'ordinamento britannico. 1962.

- Il Gabinetto nella Repubblica Presidenziale Ammirata. 1962.

- John Marshall, Novissimo Digesto, 1963.

- Residui "contrattualistici" e Struttura Federale nell'ordinamento degli stati Uniti, 1969.

- La transformacion del Derecho International en Derecho Interno y la Teoría de Hans Kelsen. 1969.

- Il Poder Exterior nella concezione di Antonio de Luna. 1970.

- Un torno ad una Teoria de Carl Friedrich: El empirismo en el estudio de los sistemas federales. 1973.

- The Role of Comparative Law in the Legal Systems of Regional Organizations. 1974.

- In marco in alla proposte par l'istituzione di un "Difensore civico". 1974.

- La Dimensione interregionale dei poteri ed il collegamento istituzionale fra Stato e Regioni: spunti di Diritto Comparato. 1974.

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## XV. PROFESSIONAL ASSOCIATIONS

Executive Council of the North Western Political Science Association, 1961-1964

Executive Council of the Canadian Political Science Association, 1963-65, 1966-68

Executive Committee of the International Political Science Association 1966-70; 1970-73

Executive Council of the Social Science Research Council, 1966-1969

Executive Council of the Inter University Consortium for Political Research, 1969-72

President of the Canadian Political Science Association, 1972-73

President of the International Political Science Association, 1973-76

Fellow of the Royal Society of Canada since 1974

Council of Academy II of the Royal Society of Canada, 1981-84

Advisory Publications Committee of the SPFC, 1978-81

Co-editor of the *International Political Science Review*, (1985- )

President of the Academy of Humanities and Social Sciences of the Royal Society of Canada 1988-91

Director, Institute of Interethnic Relations, University of Ottawa, 1992-

## V. ACADEMIC AWARDS

Harry Guggenheim Fellowship, 1976-77

William Research Prize 1988

SPFC 1990 book prize for *Lamia et territoires*

## VI. RESEARCH GRANTS

1976 J.S. Guggenheim research grant $15,000

1977-78 Canada Council research grant $12,000

1986-88 SSHRC grant $4,265

1988-90 SSHRC grant $16,000

1991-92 SSHRC grant $60,000 (together with J. Burnet, J. Berry, J. Maisel, and R. Kalin).

## VII. PUBLICATIONS

### Books

The Protection of Minorities, University of California Press, 1961, 316 pp.

The Government of France Under the Fifth Republic, University of California Press, December, 1963, 418 pp.

People vs. Politics, University of Toronto Press, 1970, 219 pp.

Left and Right. The Topography of Political Perceptions, Toronto: Toronto University Press, 1981, 292 pp.

*Lamia et territoires* Presses de l'Université Laval, 1986, 366 pp.
Revised second edition in English: *Languages and Their Territories*, Toronto: Toronto University Press, 1987, 265 pp.

WASHINGTON POST

MONDAY, AUGUST 16, 1993 A17

## Allister Sparks

# South African Spoiler

It is time Chief Magosuthu Buthelezi's admirers and financial supporters in the United States wised up to the spoiling role he is playing in South Africa's difficult transition from apartheid to nonracial democracy.

For years Buthelezi has managed to project himself in the United States as the moderate alternative to the radical African National Congress, the champion of nonviolent struggle wrapped in the mantle of the Rev. Martin Luther King Jr., the committed democrat wedded to American-style federalism and free-market capitalism as against the ANC's alliance with Communists.

He has also been projected as "the Zulu leader"—implying that he is the undisputed leader of South Africa's largest black tribe, and therefore a player ranking equally with Nelson Mandela and President F. W. de Klerk.

None of this is true. The latest opinion polls give Buthelezi's Inkatha Freedom Party 3 percent support nationally and 31 percent in its stronghold province of Natal. The ANC, meanwhile, is given more than 60 percent national support and 40 percent in Natal.

But the most serious misjudgment relates to the nature of the man and the role he is playing. As South Africa enters the critical last phase of trying to agree on an interim constitution to supplant the apartheid charter and enable the country's first one-person-one-vote election to be held next April 27, Buthelezi has launched a furious campaign to try to block adoption of the constitution, stop the election and recast the negotiations.

He has withdrawn his negotiators from the multiparty talks, formed an alliance with white extremist parties demanding a secessionist Afrikaner state and threatened to launch a breakaway constitutional convention with them if he does not get his way—warning that this could be a first step toward civil war.

He is stomping the country in the company of a pliant Zulu king, warning that the present negotiations are

a conspiracy aimed at "obliterating the Zulu nation" and that "now more than ever the Zulu nation must stick together . . . for mere survival." It is a reckless attempt to light an ethnic fire in a highly combustible country.

Buthelezi's behavior has so alarmed the local media that several major newspapers have urged de Klerk to cut the government subsidies that keep him funded in his tribal "homeland" of KwaZulu, which was established under the apartheid system.

An Afrikaans-language newsmagazine, Vrye Weekblad, recently described Buthelezi as "the Jonas Savimbi of South Africa," likening him to the Angolan rebel who was supported

> "It seems clear
> Buthelezi's main
> concern is to avoid
> an election that
> would reveal his
> essential weakness."

by the United States as the supposed democratic bulwark against commu-nism in his country, but who refused to accept defeat in United Nations-supervised elections last year, plung-ing his country instead back into a civil war—while an embarrassed United States stands helplessly by.

It seems clear Buthelezi's main concern is to avoid an election that would reveal his essential weakness. He wants South Africa's final constitution to be agreed in pre-election negotiations in which Inkatha would have a veto, rather than in an elected constituent assembly where it will be reduced to a minor player.

There is also the suspicion that, while he claims to be a federalist, Buthelezi's real aim in teaming up with the Afrikaner secessionists is to achieve ethnic fragmentation so that

he can head a breakaway Zulu nation in Natal province. The suspicion is strengthened by the fact that the draft constitution now before the negotiating council is a federal one that would establish Natal as a U.S.-style state.

Elections are all-Inkatha affairs, with most candidates elected unopposed. Of the estimated 3 million people living in KwaZulu, 780,000 are registered voters. Only 12,000 actually voted in the last election in 1988.

He claims to be a federalist, yet with the help of two conservative American advisers he has presented a constitutional plan for KwaZulu/Natal that appears to set the province up for secession. Stephen Ellmann, a New York Law School professor, has likened the plan to America's pre-union Articles of Confederation and warned that it would "debilitate the central government of a future South Africa."

Buthelezi's commitment to non-violence is likewise suspect. There is mounting evidence that Inkatha "war-lords" are among the prime instigators of the political violence that has racked Natal for the past three years, although the ANC is clearly culpable as well in what has become a battle over turf in that divided province.

Buthelezi accuses the ANC of hav-ing a private army although it has suspended its guerrilla struggle, while he himself has an official militia in the shape of the KwaZulu Police Force, which plays a highly partisan role in the Natal violence.

But it is Buthelezi's links with the far-rightists and suspect elements of the military-security establishment that arouse most concern. In a major scandal known as Inkathagate, it was revealed two years ago that Inkatha was secretly subsidized from police funds; for years the KwaZulu Police Force was headed by a seconded officer of the National Intelligence Service; and there have been press disclosures of Inkatha members receiving guerrilla training at a secret base in Namibia.

CHIEF BUTHELEZI

1
DOING IT
THE
ZULU
WAY

DENIS BECKET

FRONT LINE

SUMMER 1984

HOW, exactly, does one address the
Chief Minister of Kwazulu,
President of Inkatha, hereditary
Prime Minister of the Zulu nation, etc?

From the easy urban, perspective of
Johannesburg or even Durban this does not
look too knotty a problem. Hereditary titles
seem a little otherwordly and unreal, in the
first place, and homeland leaders do not fit
into any especially elevated category of the
mind either. If you were required to address
one, well, you'd just address him like you'd
address anyone else, that's all. Maybe call
him "Chief" or something.

But the Johannesburg perspective is a
very long way away from Ulundi.

Sitting on one of the twenty or so lux-
urious easy-chairs in an outer waiting room
in the Chief Minister's suite, leafing
through the conventional waiting-room
literature — a hotel brochure, a magazine
about industrial diamond production,
another about interactive graphics in car-
tography — the thought dwells heavily
upon the mind.

"Chief"? That's out for a start. "Chief"
is what the assistant sales managers at the
Sunnyside Park on Friday afternoons call
the waiter.

Down here, the atmosphere is heavily
with dignity. It's in the air, and is hugely
fortified by the environment — huge, im-
posing government buildings, armed guards
everywhere, electronic surveillance systems
with intercoms and control panels looking
like the cockpits of jet fighters.

And the baas of this plaas; the central
dominant figure around whom the entire
executive structure revolves; is Chief The
Honourable Doctor M.G. Buthelezi, Prince
of Kwaaphingangeni. Let's face it; one does
not simply waltz gaily into the inner sanc-
tum and say "Hi, Gatsha"

In fact, around here one does not say that
word at all, under any circumstances. In
Jo'burg, it's all very well, one refers to
"Gatsha" in the same way as one might
refer to "PW" or "Maggie". But down
there, in the man's own bailiwick, you mind
your Ps and Qs. "Gatsha" is a pet name,
the name which intimates and close relatives
are entitled to use. Buthelezi never even
uses it himself. He invariably signs himself
"Mangosuthu G Buthelezi", not least when
firing off long and angry letters to the
editors of those newspapers which have
committed the offence of using the word
"Gatsha" in a headline.

But here, around Ulundi, one doesn't
talk of "Mangosuthu" either. One talks of
"Chief Minister", and that's about it. One
talks in hushed and reverential tones too. It
is amusing, in fact, to see people who when
in Joburg will "Gatsha" along with the best

PLEASE TURN OVER

["CHIEF BUTHELEZI", "Three bags\nfull, sir", "CONTINUED", "of them, now suddenly adopting a com-\npletely different tone of voice and referring\nrespectfully to \"Chief Minister\". Practical-\nly the only optional extra is the possibility\nof employing a \"the\". Whites tend to say\n\"The Chief Minister\", when talking in the\nthird person. Blacks, talking English, usual-\nly drop the \"The\".", "But this does not entirely help one with\nthe question of what form of address to use\nin the second person. \"Chief Minister\"\nseems a possibility, but a little obsequious\nsomehow: \"Yes, Chief Minister, No, Chief\nMinister, three bags full Chief Minister\".", "Trigger issues\n\nTrigger issues\n\n

CHIEF BUTHELEZI

Inkatha supporters at Chaka's Day rally.

alleged, for instance, that many a member is a member solely in that his name appears on a list, sometimes without his active support and perhaps even sometimes without his conscious knowledge. It is heard too that some members are there reluctantly, and because the prospects of advancement within the KwaZulu government service do not otherwise look rosy. And it is heard also that Inkatha, although it shortly after its re-birth changed its official identity from a "Zulu" Cultural Liberation Organisation to a "National" one, has little currency outside the limits of what is now officially Zulu territory.

The President of Inkatha does not take kindly to having this kind of issue raised in his hearing.

"Members renew their membership each year. But it is like the case of a church. There are many people who are not careful about paying their church dues every month, but I wouldn't say that they are therefore not Christians, or not members of the church."

And enforced membership? "That is an insult. An insult. I will not have faeces flung at my face. I have had this over and over again. Why must I waste time answering this rubbish? I would rather do other things. Here in my office, here in my immediate staff, there are people who are not members of Inkatha. They can choose. I do not force them. Nobody forces them. Nobody hounds them."

And isn't Inkatha essentially Zulu? "That is an insult. You don't say that of the

PFP. You don't ask whether it is essentially Jewish. Why is it pertinent to us? It is because we are black. It is an attempt to denigrate me and Inkatha. I don't deny that I am a Leader here; I am a leader by birth and a leader by democracy; but my commitment is not Zulu, it is national. My conversation with Jimmy Kruger stands. As early as 1977 he was concerned about the number of non-Zulus in Inkatha. He told me I had to confine Inkatha to Zulus. I told him that as long as he let non-Afrikaners into the National Party I would welcome non-Zulus in Inkatha. I stood up to a minister of state. This matter is part of the strategy to vilify me."

Given the tone of these replies, it seems unwise to proceed immediately to further friction points, such as the question of the implications of Buthelezi and Inkatha's participation in the homeland structure. Conversation returns to safer ground. But these other issues must be raised. They ought to be legitimate subjects of discussion. They are of course precisely what the vast majority of black criticism of Inkatha involves. Eventually we return to the question of participation, and the alleged "legitimisation" of the homeland system which it involves. Immediately, the temperature rises again by several degrees.

"This is a racist thing, it is done because I am black. You don't accuse Helen Suzman of selling out by participating in a white parliament. The people who level this accusation at me are politically illiterate. They travel in black taxis, they live in black townships.

"Do they expect me to abandon my people? I inherited duties to the Buthelezis and to the Zulu nation. I am not some township trader or ambitious school inspector. I am a hereditary chief. I never campaigned to be Chief Minister. I hold that position by inheritance and by the unanimous decision of the Zulu people. KwaZulu is a place of history, it is not something created by the government like a township. I opposed the Bantu Authorities Act more than anyone. When KwaZulu had to accept it ordinary people begged me to stay at the helm. I accepted my responsibilities to the Zulu nation. I did it in order to block the consumption of the policy. I did it to stop KwaZulu becoming independent. The press's attitude to this has sickened me. People who have not abandoned a single one of their many privileges in empathy with us attack me for using the system. What cheek this is."

With an even keel again having been restored, time comes for to leave. Buthelezi rises and sees me to the ante-room. "We'll

PLEASE TURN OVER

A tale of two Gumedes

INKATHA people often feel that there is a double standard in attitudes towards them.

In April, UDF President Archie Gumede wrote to Chief Buthelezi setting out his attitude towards the existence of Kwazulu in clear terms: "... for members of an oppressed and coerced community to voluntary man and daily keep institutions of oppression serviced to grind the defenceless masses under the yoke of oppression is suicidal and untenable."

Later, shortly before Mr Gumede became one of the people taking refuge in

the British Consulate, his wife Edith applied to work for Kwazulu.

Mrs Gumede is a retired teacher. According to Kwazulu's Minister of Education, Dr Oscar Dhlomo, her "service to Kwazulu has been beyond reproach." Her application to teach again next year was referred to the full Kwazulu cabinet and approved "without hesitation". "We have no problems at all with those who are ideologically opposed to Inkatha and we welcome their contributions towards social services such as education in the region."

CHIEF BUTHELEZI

In jail for
a joke

CONTINUED

"Unless you don't like my story" I say.

"That doesn't matter. I still speak to people who have written stories I did not like."

By now we are at the door. Buthelezi is opening it and his aides are in earshot. But this touches on an important issue — Buthelezi's abnormal sensitivity. Many believe he limits his own impact by responding with excessive heat to anything which may be construed as personal criticism.

Ironically, there is a way in which this specifically sets back the cause he serves. It has the effect on some white people of further frightening them about "black rule", and gives them another arrow in their armoury of reasons for preserving apartheid. "See, they want hero-worship. If they get in power you can be thrown into jail for a joke in a bar ..."

The implication is that this is a peculiarly third world, or African, habit. In fact, that is hardly true. I recall a story I was told after I had written something critical about Lucas Mangope. One of his henchmen, a white one, set out to put me in my place. With much pain and many drafts he produced a blistering letter, which he proudly showed to Mangope. Mangope read the first few lines, then lightly tossed it in the wastebin and told his irate champion to acquire a sense of humour.

Standard scene - flashbulb, megaphones and microphones.

Yet it is true enough that the dignity of the Leader is a more fragile, more dangerous thing generally in Africa than it is in the stable democracies. In Britain you can buy toilet roll holders modelled as Maggie Thatcher's face, with the reel in the mouth. In Zimbabwe you don't even dare

draw a cartoon of Mugabe. It is this kind of thing which does a lot to put white people (and others) off the idea of change.

There we are at the door. I have been wanting to raise this. It is now or never. And he has just given me a perfect cue.

"I'm glad to hear it," I say, "particularly since there is, as I'm sure you know, a belief that you are very sensitive to criticism ..."

Buthelezi promptly hits the roof. "What!! Why? This bullshit. Why do they say this bullshit?! Why must I let them get away with bullshit? They think it's because they're white. I do not object to criticism, I will not object to criticism. I only object to vilification. They vilify me."

The courtiers are looking on scandalised and I am willy nilly recalling the fate of a namesake of mine, of whom a careless king had once requested riddance. That king's courtiers took him more literally than he intended and although I know that grievous bodily harm is in no way here a possibility, the parallel does not enhance my peace of mind.

Buthelezi's rage subsided. I said, lightly: "You'd better tell these chaps it's not me you're mad at," (It actually was, of course, as I had raised what "they" said, but Buthelezi had preserved the facade by rail-ing against "them").

Buthelezi had picked up a length of telex copy. Looking at it, he said quietly: "Why? You don't imagine it would make any difference to them, do you? You and I could argue, and your treatment here would not be different."

Then he looked up and directly at me: "Or do you think it would be? Do you?"

Pilloried by the Press

It is widely felt within the upper echelons of Inkatha that the movement, and Chief Buthelezi in particular, are the targets of a deliberate campaign of what Buthelezi refers to as vilification.

Unfortunately, in Buthelezi's mind the fine between vilification and criticism is unusually fine, which often makes it difficult for more detached observers to perceive where the vilification ends and the criticism begins.

It is clearly true that within the offices of the Johannesburg black newpapers — the Sowetan and City Press, — there are people whose hatred for Inkatha is overwhelming. Their argument is that by collaborating with the structure Inkatha weakens black resistance and enables apartheid to work.

Many Inkatha people claim that the anti-Inkatha campaign includes false letters to the editor, which are actually written by journalists on the staff. This

allegation is supported by a former executive on one Johannesburg paper, who confesses that at times when genuine letters were few, it was common practice for reporters to be assigned to knocking out phoney ones, and that taking swipes at Inkatha was a particularly popular subject for the reporters. This was not only because of their dislike of Inkatha. It also involved a kind of game — seeing who could attract the most vigorous reply from Buthelezi or other Inkatha leaders.

Recently, City Press has carried a letter from "A K" of Ansterville, heavily critical of Inkatha. This was given prime place and the R10 "Letter of the Week" prize. Subsequently an A K of Ansterville also won the R10 prize for a strictly back-handed "compliment" to Buthelezi. Another recent correspondent has been A Khumalo of Austerville, accusing Inkatha of "using" black people and helping make apartheid work.

25

CHIEF BUTHELEZI

3

"I can not be frightened"

Do you not risk inflaming feeling by going to speak there?

They have asked me to. They have called on me. And I am a Zulu, do not forget that. I can not be frightened.

*Is it true that Inkatha support in Soweto's very limited?*

Why do you isolate Soweto? Do not separate Soweto from South Africa. I will not do that. Why the importance of Soweto?

I will concede that if solidarity was all that I wanted it to be, I would not be burning the candle so much.

People say that Inkatha is mobilised. They say why do we not take action. They forget that I was in the ANC. I have seen sporadic action fail. Black unity is still to be worked for.

Recently you seem to have been quite silent regarding blacks using consumer power, and extension into the trade union movement, both of which I seem to recall were matters to which you referred frequently in the past.

I have always said that blacks must use consumer power and I still say it. Remember that the Fattis & Monis boycott succeeded because Inkatha participated.

We boycotted white bread and brought the price down. There is more potential to use that weapon. I have never talked of Inkatha forming trade unions. Our constitution, which is modelled on UNIP in Zambia, provides for us to do so. But we have not urged trade unions to affiliate. We have not actively urged them. The unions need to put their own house in order. Some people try to poach members for unions, we do not.

I should mention that I am well aware that whites in some unions, Fosatu unions, are brewing dissension. They try to stop the workers from having anything to do with Inkatha. But the workers at Richard's Bay called on me, they demanded my presence to launch a Fosatu branch there. We know that certain functionaries in these organisations, especially those who are not Africans, have been got at by the ANC external mission.

*To what extent does Inkatha generate its own funds?*

Almost totally. The only money we have had from abroad was when we were publishing The Nation, and over the citizenship issue.

*What do you have to show by way of practical development achievements?*

We have an Office of Development. We encourage people to work on a basis of self-help and self-reliance. Of course, we have a problem in terms of resources. There are too many people. More are resettled with us. I had a letter yesterday from KwaNgema asking me to refuse to take the people who are being resettled from there. I cannot refuse, that is something people do not understand. All the farms which were brought by the S.A. government for consolidation have never been handed to us. They are leased to white farmers. South Africa can take people and dump them there, we have no control. A lot of balderdash is written by people who say we collaborate with resettlement, but that land is under their control, the South African government's control.

They penalise us too. They punish us for not taking Independence. The money goes to those who have done what they want (i.e. taken independence.) We are made to feel the consequences of our stand.

There is a school of thought which maintains that once all the other homelands have accepted independence, Kwa-Zulu will too.

They do not know the Zulus.

*You must feel disappointed at the fact*

CHIEF Buthelezi speaks out frankly on issues ranging from corruption to political strategy and from Mandela to Matanzima, giving inside information on controversies which have so far been unknown to the public.

KwaZulu has a reputation for being particularly free of graft and corruption. Is this so, and is it because you have taken a very firm stand on the issue or what?

We don't even know that word, graft. I only hear about it. I'm not doing what I'm doing for what I can get. My duties are inherited, my duties are to my people. We have had complaints about pensions. We have found wrongs and frauds, inside jobs. Not only Africans in our administration have been involved. We try to eradicate it wherever we find it. I try to set a good example. I have no business. I have no farms. This is not the Transkei, I own no shares, or interest in companies which compete for government contracts. Graft is not a problem in KwaZulu, not yet. When I'm not here any longer, I don't Know what will happen.

*What exactly is the root cause of your big fall-out with the ANC?*

Are you pretending? Yes, you must be pretending. You know it, that they are jealous of my power. They want to be the sole authentic representatives. All along, until 1979, they wanted me. Tambo and the others, they always distinguished between me and the others who were in homelands for other reasons. Then they wanted me to operate undercover. I could not do that, and I can not reconcile our different approaches to the use of violence.

*I have often heard you quoting letters from Nelson Mandela, which show him to hold you in high regard, and lately it has struck me that those letters are getting a bit old now...*

Why do you say that? You are not talking of a pair of teenage lovers, who can do somersaults between Monday and Tuesday. It is irrelevant that they are old. I do not need to use his name. When his daughter was beaten up recently I sent him a telegram, but I do not make capital of it.

*Is it true that the current troubles in Lamontville are related to incorporation into KwaZulu?*

No, they asked to be incorporated, they wanted it. The trouble is to do with rents. This burning of buses etcetera... it is all orchestrated. It has nothing to do with me. The ANC is sending money to SAAWU.

14

CHIEF BUTHELEZI

N]

Mangope was
the fiercest

CONTINUED

that four homelands have accepted
independence.

Certainly. In September 1973 when we met in Umtata, we all agreed not to take independence. At that time there were rumours about Matanzima, rumours that he might be flirting with independence. The issue was so sensitive that Mangope made all our aides leave the room. When we were alone we taxed Matanzima. He denied. And denied again. A few months later came the announcement, Transkei was to accept independence. At that meeting, Mangope was the fiercest of all in challenging Matanzima; he was the most firm and insistent. Soon after Transkei, he took it too.

The S.A. Black Alliance was formed
with quite a lot of fanfare, but now we
hardly hear of it. What is its situation?

It still exists. We have Mabuza (Chief
Minister of KwaNgwane) and Chinsamy
(leader of the Reform Party) but Mabuza
has been much involved with the land
commission lately and has had his time
cut out. The Labour Party left when they
sold out (i.e. agreed to participate in the
new Constitution.) Dikwanetla (the ruling
party of QwaQwa) also left. I could never
understand Mopeli (the Chief Minister of
QwaQwa). We never got on. He left,
saying his party could not afford the
R1 000 subscription fee. I was not sur-
prised. Once he had crossed swords with
me right in front of the Prime Minister,
Vorster. I had objected to a certain
phrase in a communique we were issuing
after a meeting. He blurted out that I
should not object, as I was only one
person. The Prime Minister had that
phrase deleted anyway.

Another time, all of us were meeting
in Cape Town. We were caulcussing before
meeting the Prime Minister the next day.
Then Mopeli wanted to go to bed at 10
o'clock. I said we had come a long way,
and should prepare ourselves further. He
took offence.

What has happened to the committee
set up to explore the prospects of fede-
ration, and how does it relate to SABA?

It is still on the rails, as far as I know.
At first, while we had SABA, we didn't
see why we should multiply structures.
They (other homelands) had asked to
send people to SABA as observers, but
then they never turned up, except for
Lebowa, which finally sent the Minister
of Education.

Then Matanzima became interested in
the federal discussions, he wanted urgent
involvement. We had nothing to do with
each other ever since he opted for in-
dependence, but then he sent his people
to tell us of his interest in this arrange-
ment. I didn't know whether to see him.
Then I thought, well, I see the Prime

Inkatha Youth Brigade rally.

Minister, if I can see him I can see any-
one.

In his messages Matanzima was speak-
ing of himself as a South African, which
pleasantly surprised me. He wanted a
meeting in Umtata, I wanted it in
Soweto, then he said that he was a Head
of State, he couldn't be going up there.
Then my feeling was that we should not

have this big indaba unless he cou-
pelude his brothers in the independent-
league to come in as well. But that do
not work. Mangope, the other one wh
matters, sees himself as home and do
economically now. Then we settled c
Tongaat. I flew there, he flew there, an
e we talked.

DENIS BECKETT

Hard question to answer

HE paraphernalia of statehood is
striking. The cars have "Z"
registrations; the police have
"Z.P." tags on their epaulettes. There is an
imposing suite for the king, replete with
magnificent carved desk (not likely to see
mush use, from what one hears about the
king). There is a distinctly State Banquet-
style dining-room. What do you do with
a room like that if Kwazulu reverts to be-
ing just a part of South Africa? It
wouldn't belong at all.

One feels a smack of comprehension of
what it is that gets the anti-apartheid
establishment so hysterically anti-Buthelezi.
Their fight is for a united South Africa. So
is his, and he argues vehemently that this is
precisely what he is using the homeland
platform for. Yet at the same time there is
all this sense of statehood creeping into dai-
ly consciousness. Zulu pride, which would
surely be there in any case, inevitably
overlaps with notions of self-determination.
And the more the spirit of Zulu-ness is

cultivated, the more blurred the distinction
becomes.

What if Buthelezi had flatly refused to
have anything to do with the homeland
structure? Had he stayed out — and bear in
mind that he claims virtually total support
from the entire Zulu people — would he
have hastened or retarded the aim which he
shares, paradoxically, with his bitterest
enemies, the aim of a united South Africa?

A worthwhile question to explore, but
not one which lends itself to considered
discussion. Buthelezi brooks no questioning
at all, considering even the mention of
the subject to be vilification of his
character, which he detects as readily as
Louis le Grange detects Agitators. And
the more important of his detractors
refuse even to admit discussion as to
whether there is a distinction to be drawn
between independent and non-
independent homelands, and simply
brand the entire kit and caboodle as
traitors.