04-11-94 03:16PM

TO HAI

P002

[Y]

Glazebrook accompanies in S.A.
Leaman accompanies is L.A.
Phillips accompanies

April 11, 1994

South Africa, Littlefield, LA, Chicago, & Detroit

April 17 - 22, 1994

## Monday, April 11

6:30 p Depart JFK via South African #202 (747/first)

## Tuesday, April 12

2:55 p Arrive Johannesburg

ca.

5:00 p Private meeting between Nelson Mandela, HAK and Lord Carrington (undisclosed location).

Mandela's secy: Barbara Masacella 27/11/298532
or Frank Ferrari HM: 27/11/646-8867
OF: 403-3308

6-8:00 Reception at Hotel

8:30 Meeting with De Klerk in Pretoria

TF: 011/27/11/331-8911
FX: -3555

## Wednesday, April 13

am All mediators and members of the Parties will be flown by executive helicopter to Anglo American's Mbulwa Estate. (HAK and Carrington in Anglo American's heli)

International Mediation Forum Secretariat at Mbulwa Estate:

TF: 011/27/1315/42150 or 42151
FX: 42152

HAK in Suite #2, extension 229.

NOTE: There will be a secretariat on hand at all times to assist.

04-11-94 03:16PM

TO HAI

P003

Saturday, April 16

8:10 p Depart Johannesburg via LH 575 (747)

Sunday, April 17

6:45 a Arrive Frankfurt

10:15 a Depart via LH 450 (747)

12:45 p Arrive LAX and met by Mike Leaman and Rick Crooks for transfer to Peninsula Hotel.

TF: 310/551-2888
FX: 310/788-2319

TBD To Palm Springs to attend Mr. Littlefield's 80th birthday - 6:30 p cocktails; 7:30 p dinner.

74-185 Quail Lakes Drive, Indian Wells

TF: 619/345-2558

HAK RON Littlefield residence.

OR

Sunday, April 17

8:00 p Depart Johannesburg via South Africa #201

7:30 a Arrive JFK on Monday

And connect to:

Monday, April 18

9:00 a Depart JFK via AA #1

11:37 a Arrive LAX

Monday, April 18

8:45 a Depart Palm Springs via Delta #5270 (30-passenger turbo)

9:25 a Arrive LAX and met by Mike Leaman and driver, Rick Crooks.

04-11-94 03:16PM

10.1.1.

P004

Monday, April 18 (con't)

TBC - being
moved to 2:00 p
Tuesday taping

10:00 a Arrive KABC-AM Radio (3321 S. La Cienega Blvd.) for "Michael Jackson Show" (20-minutes from the airport)
Contact: Ted Lekas 310/840-4901

10:15 -
11:00 a 30-minute **live** interview with 15-minute call-ins (show continues until 1:00 p) followed by a 15-20 minute taped interview for Fox Morning News.

1:00 p Lunch with Sherry Lansing at Paramount Commissary.

TBC -
To be moved:

3:15 - 15-20 minute taped interview with KCET-TV (PBS) with
3:45 p Patricia Morrison at The Peninsula where you have a
suite.
Contact: Saul Gonzales 213/953-5378

6:15 p Arrive Beverly Wilshire Hotel, 9500 Wilshire Blvd.
TF: 310/275-5200, for World Affairs Council dinner for
book signing (in a private hotel suite) and a briefing
by Curtis Mack, President.
Contact: Jennifer Kim 213/628-2333

6:45 p Gerry Parsky will be your host for VIP reception on the Mezzanine level with receiving line and photos.
(ca. 150-160 high-level corporate members and big donors <$2,500/year> in the international circle)

7:20 p The guests proceed into the Ballroom while the head table lines up (You, the Bd of Directors and spouses).

7:30 p Dinner is served.

04-11-94 03:16PM

TO HAI

P005

## Monday, April 18 (con't)

8:15 p Dessert is served.

Curtis Mack opens meeting and introduces "Chairman of the Day" (Gerald Parsky) who will introduce you.

8:30 p HAK speaks for 20-30 minutes followed by 30-minute Q&As written by and collected from the audience during dinner. They will be scanned, collected and asked by Mr. Mack.

9:30 p Mr. Parsky thanks and presents you with a book on Los Angeles.

9:40 p Meeting adjourned and 20-minute book signing outside the ballroom (personalizing some of them).

10:00 p Dinner is over and depart for ca. 5-min. drive to
RON: The Peninsula

9882 Little Santa Monica Blvd.

TF: 310/551-2888

FX: 310/788-2319

## Tuesday, April 19

8:00 a TCW Board of Directors meeting at the offices of the Corporation, 865 South Figueroa Street, Los Angeles

TBC

2:00 -

3:00 p Taping for Michael Jackson show KABC-AM Radio. (See Monday)

4:30 -

4:45 p Pre-interview chat with Jay Leno

Contact: Jay Berg 818/840-2274

04-11-94 03:16PM

T0 HAI

P006

Tuesday, April 19 (con't)

5:00 p "Live-to-tape" that night's show (before a live audience). You would be the first guest, so would be out ca. 5:30 or before.

At least a 45-60 min. ride back to Beverly Hills.

TBC:
KNBC or KIEV Radio

RON: The Peninsula

Wednesday, April 20

TBC

8:22 a Depart LAX via AA #1648

2:14 p Arrive Chicago O'Hare and met by Michael Phillips and Tom Mulligan of Metropolitan Limo
TF: 312/808-8000
(Earlier flights leaving LA at 8:00 a UA or 7:00 a UA)

3:00 - WTTW-TV (PBS), 5400 N. St. Louis Ave., to tape
3:30 p "Chicago Tonight" with John Callaway.

Return to The Fairmont Hotel, 200 N. Columbus Drive
TF: 312/565-8000
FX: 312/856-1032

5:15 p Chicago Foreign Affairs Council booksigning for 15 minutes.
Contact: Sharon Houtcamp 312/726-3860

5:30 p Reception for 30-minutes

6:00 p Program begins and you speak for 30-40 minutes.

6:40 p Q&As for 30 minutes

7:15 p Booksigning for 30 minutes.

04-11-94 03:16PM

TO KAI

P007

Wednesday, April 20 (con't)

ca.

7:45 p Return to your suite

5-7 minute drive to:

9:00 p Arrive WGN-AM Radio, The Tribune Tower 435 N. Michigan Ave., for live interview "Extension 720" with Milt Rosenberg

10:00 p Listener call-ins for 1 hour.

RON: Fairmont Hotel
200 N Columbus Dr
TF: 312/565-8000
FX: 312/856-1032

Thursday, April 21

TBC

9:00 a WGN-TV taping for "Noon News" for 4 minutes on air
(If it can be done at the hotel)

10:00 -

10:45 a WGN-AM Radio, 435 N. Michigan Ave., "American Reader" with Milt Rosenberg for taped interview.

15-minute drive to:

11:30 -
noon
WBEZ-AM National Public Radio, 105 W. Adams 39th floor,
**live** interview "Midday with Sondra Gair"

Kennedy under major construction - can take at least
30 minutes and up to 1 ½ hours.

1:30 p Depart Chicago via American #802

3:45 p Arrive Detroit Metro and met by car and driver to go to the hotel. John W. Wood and Assoc. Inc. 616/964-0332

04/07/94 13:11

☎214 830 1156

REGION

☑ 007/007

APR 07 '94 04:21PM CALTEX OIL (M D OFF) 021 40070251

P.O

CONTACTS FOR DR HENRY KISSINGER

Dr Oscar Dhlomo - Executive Chairman and Founder of the Institute for Multi-Party Democracy and a member of the Independent Electoral Commission; well known commentator on current affairs, Tel (MPD) 031 304 3863 / (IEC) 011 928 1000 / 011 353 1149 (offices)

Dr Seshi Chonco - Corporate Affairs Manager, Caltex Oil (SA); former political consultant and Programme Director of the Institute for Multiparty Democracy, Tel 021 403 7271 (office) / 021 759909 (residence)

Clive Menell - Chairman of Anglovaal and holder of numerous company directorships; prominent businessman; Tel 011 634 0140 (office) 011 486 1150 (residence)

Bishop Stanley Mogoba - Vice Chairman National Peace Accord and Methodist Bishop of SA, Tel 031 224214 (office)

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GEORGETOWN UNIVERSITY

Chester A. Crocker

Landegger Distinguished Research Professor of Diplomacy
Intercultural Center Room 732
School of Foreign Service

April 10, 1994

The Honorable Henry A. Kissinger
Kent, Connecticut

Dear Henry:

You asked me to outline some thoughts on what might be accomplished on your mediation mission in South Africa. This letter offers some background and ideas. Bobby Godsell and our embassy will provide the latest from their sides which should substantially flesh out the context. My basic sense is that the parties' confirmation of your role is quite positive and plays into your hands rather well (especially against a backdrop of foreboding, stockpiling of food and arms, a sharply declining national currency, etc.) I might add that your name and Peter's have very high standing indeed in the SA media and elite opinion. So the terrain ain't bad.

## The Setting

F.W. de Klerk inherited from his predecessor in 1989 a regional peace breakthrough (Namibia/Angola) which Pretoria viewed as a plus since it removed the Cubans and completed the defanging of the ANC as a military entity. He took over a garrison state which had outlasted regional adversaries and had physically broken the back of the urban black uprising at home. Acceding to power as the Berlin Wall came down, de Klerk could assume that Afrikanerdom's nationalist enemy -- the ANC -- had lost forever its communist support base. However, this garrison state was totally isolated at the international political level. It could hang on, but it could no longer pretend to govern or reform the country unilaterally. A major and probably irreversible political opening to the ANC would be necessary. Standing still was not wise: there was a window of opportunity, but it had to be grasped.

National Party (Nat) officials had been engaged in quiet talks with the ANC (including Mandela) since 1986. They were persuaded that he was a person of tremendous stature whose presence and authority should be utilized, not wasted. With P.W. Botha out of the way, a loose coalition of Nats around FW de Klerk were able to move boldly -- in hopes of getting ahead of history, avoiding the Rhodesian experience, and shaping events toward a political dispensation of balanced, power-sharing (with significant white vetoes as well as a

Washington DC 20057-0999
202-687-5074 or 5763 FAX 202-687-5666 23:55

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universal franchise and Western style bill of rights). The Nats did not know exactly which form of power sharing to go for (within the executive level, checks and balances between branches, federal, electoral). So they went for some of everything and ended up discrediting a whole range of good ideas as mere Afrikaner devices to screw the blacks under another guise. And they characteristically imagined that they could push the ANC around, hopefully split its moderates from its Leninists, and, by releasing Mandela, bring him down from his pedestal to human scale where his limits would become apparent.

De Klerk's historic February 1990 decisions (releasing Mandela and unbanning the ANC) set in motion a four year process of negotiation which "concluded" last November with: the establishment of the multiparty Transitional Executive Council (TEC), agreement on the "interim constitution" to be in effect until the parliament/constituent assembly agreed on a permanent one to be modelled on a series of agreed constitutional principles. The agreement also provided for an April 26-28 election to choose a parliament which will form the basis of a "power sharing" executive to serve no more than five years; each party earning more than 5% of the vote will be represented in the resulting government.

These agreements were approved by more or less every organized party except those of the so-called Freedom Alliance which loosely grouped: Buthelezi's IFP (Inkatha); the white Right coalition called the Afrikaner Volksfront; and the Bophuthatswana homeland regime of Lucas Mangope. These parties had opted out of the process in July '93 (after repeated boycott threats or temporary walkouts) and have not approved the agreements despite virtually non-stop efforts by the Nats and the ANC to get them on board.

The approaching election created mounting drama in February and March as the TEC (i.e., the ANC/Nat coalition) scrapped one election registration deadline after another in "last ditch" efforts to bring the Right and Buthelezi on board. These efforts failed. The early March summit between Mandela and Buthelezi in Durban which produced the appeal for "external mediation" was, thus, one in a series of attempts by the ANC to break the Inkatha electoral boycott and open up chances for meaningful elections in as much of KwaZulu-Natal as possible. (The troubles in Natal have been going on for 10 years. This is a nasty, intra-Zulu turf war for control of the province's destiny; it pits royalists and traditionalists and their rural, migrant worker, royal retainer-homeland regime support base against more urban, secular and politicized Zulus aligned with the labor movement and the politics of 1980s unrest. ANC-aligned Zulus have been gaining ground slowly and steadily, but the IFP-royalist camp retains strength and support in rural areas and among migrant hostel dwellers up in the Transvaal.) The defeat of Mangope's Bophuthatswana regime by

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the TEC (Mandela actually urged the SA Defence Force to take over) in mid-March, the simultaneous collapse of homeland resistance in Ciskei, and the parallel split of the white Right (Gen. Constand Viljoen's party opted to participate in the election while Terreblanche's AWV and Hartzenberg's Conservative Party will not) round out the picture.

In sum, Buthelezi and his nephew King Goodwill are now virtually completely isolated: in black politics, internationally, in terms of de Klerk's government, and in the opinion of moderate, scared whites who until recently saw the IFP as a real alternative to the liberal Democratic Party and the Nats. Buthelezi is alone and pilloried; few serious people believe he wants any outcome involving voting that would reveal his narrowed support. He lease on power as KwaZulu chief runs out in three weeks -- income, staff, perks, security, title, and role are all running out -- and hotheads believe this means it is not necessary to give him anything. Almost everyone worries about the price the country may pay for his dogged self-exclusion. Yet, even Mandela has tried to divide the enemy, offering the King a package of lovely party gifts, but rebuffing Buthelezi's demands and pressing de Klerk to send the SADF into KwaZulu.

## WHAT WENT WRONG?

Several major problems arose in the negotiations leading to the current impasse:

- the Nats outsmarted themselves. Their game of stringing out the talks in 1991-92 and hopefully splitting the ANC alliance (ANC-SACP-COSATU) backfired in May 1992 when the ANC walked out, mounted 6 months of "rolling mass action", provoked a series of violent incidents, and began playing a long game, placing the government on the defensive at home and internationally. (No Western power has done anything "balanced" toward these guys since Bush lifted Federal sanctions in July 1991, with the result that de Klerk's team found itself dealing with a negotiating partner that threatened to seize control of both the timing and the "high ground".)

- The constitutional deals that seemed within reach in June 1992 evaporated because de Klerk's people kept pressing for more, even while aggressively using the security services to disrupt the ANC and bolster Inkatha. At this stage, the Nats were covertly in league with Inkatha (and the ANC knew it). The ANC's mood snapped, and more militant people risked gaining ascendancy. Eventually, the balance within the ANC righted itself, thanks in part to the old Lithuanian SACP chief Joe Slovo who bluntly warned the executive that it was essential to strike a deal with the Afrikaners now, to offer them an interim sharing of power or risk a collapse into deeper strife that might spin out of

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everyone's control.

-- By early 1993, de Klerk's team had reversed its strategy. Long, private retreats between the ANC and Nat teams persuaded the sides that an acceptable deal was possible. (This was when the 5-year power sharing concept was agreed.) But nothing was done to "compensate" Buthelezi who had never been happy with the formal ANC-Nats talks even when the Nats were quietly playing a double game. Things only got worse at the point of Chris Hani's assassination in April 1993, a time of urban crisis when Mandela's appeals for calm overshadowed anything de Klerk could do.

-- Increasingly, de Klerk's side appeared to weaken as key aides resigned and Afrikaner opinion swung more openly against him for "selling out". His bench was getting thin as Nat politicians collapsed of exhaustion or bailed out under the heat of intra-Afrikaner tension. The ANC talent pool seemed increasingly impressive. At the multiparty talks, it was apparent that the government was not having much success in pressing the ANC to accept Afrikaner definitions of constitutional power sharing. It did not help that Nat ranks in mid-93 were split between those who still supported Buthelezi's demands for entrenched federalism or confederalism and those who realized that their future was with Mandela. De Klerk was failing to bring his constituency with him (having over-promised what he could achieve at the table). A series of revelations of security force secret operations against ANC supporters placed him on the defensive and aggravated the ANC's tendency to blast his credibility.

-- As the process unfolded, de Klerk's hand inevitably weakened since there was no turning back and no way to take back cards already played with the ANC (which, by 1993, had the better negotiators). While the balance of the parties was roughly equal in 1990, it was shifting against the Nats by mid-1993 as the process dragged on. Many white observers have faulted the Nats for engaging in a protracted, if amateurish constitutional debate as part of the overall negotiation about the transition to a universal franchise. It would have been better for the minorities (including Inkatha) to move faster, stick to broad principles, and get quickly to an elected, legitimate government which could address the violence, unemployment and ungovernability. Had this been done, the constitution could have been negotiated separately, later with a stronger role for qualified people.

-- Through this period, knowledgeable people were aware of the security forces' alignment with Inkatha (both in KwaZulu and in the townships of the Transvaal). Similar alignments existed in the homelands of Bophuthatswana and Ciskei. Eventually -- if an election were to be held -- something would have to give in these places: their apartheid era governments would not be part of a democratic

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South Africa. But some of them refused to line up with Mandela. The hard choices were postponed until the election deadline forced the issue.

-- The agreements of late 1993 represent an assortment of late night compromises, papered over constitutional fixes, and genuine democratic structures. But in the end, the Nats and the ANC got what was important to them. Neither of these essentially authoritarian movements had a deep interest in any third parties or the rights of minor political parties. Neither is really representative of South Africa's impressive "civil society". DP leaders (the best hope for Western liberalism) mounted scathing attacks on some of these deals. The result can be called a pact between the leading voices of black nationalism and enlightened Afrikaner nationalism. Jobs, pensions and careers of current officials will be protected. A future political role for some Nats is more or less assured, as is ANC political dominance of the new government.

-- Sadly, Buthelezi allowed himself to be marginalized, joining up with de Klerk's rightwing, racist opposition and pulling back from the role he could have had in the talks. Suspicious that the government was sliding into bed with the ANC, he actually made it easier for the two of them to ignore his interests. He had a hand to play, but overplayed it, believing apparently that he could block de Klerk's dalliance with the ANC moderates around Mandela. It was Buthelezi's demands for a full blown and totally entrenched federal constitution now (before elections) that weighed on the Nats, dragging the process out, while also giving Inkatha endless grounds for complaint when its demands were ignored.

-- A proud, impressive but brittle man, Buthelezi showed increasing weakness for the company of fawning yes men and hardline advisors who told him that he had always been successful when he stood aside from Prestoria's plans. By the fall of 1993 when the agreements were within sight, Inkatha negotiators made several efforts to obtain limited improvements. But when they got a "yes" answer from the TEC partners, Buthelezi kept raising the price for agreement, undercutting the credibility of his negotiators and adding fuel to the media's definition of Buthelezi as a "spoiler" who is scared of elections and determined to rain on the parade. Did he believe he held higher cards and that the TEC would keep caving in? Or had he already decided to thwart the elections in his constituency and hope the threat of violence would stop the train in its tracks? Like a man holding a gun to his head and threatening to pull the trigger, the Chief believes his only hope is a crisis. Or, outside intervention. King Goodwill's demand for a sovereign Zulu nation is the latest shift of the goalposts. Oddly, only Buthelezi's hardline advisors and Pat Buchanan think it is a serious and worthy position. (The Chief, like some

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other African leaders and like P.W. Botha, has a set of good cop and bad cop advisors. It will be interesting to see which are fielded at Mbulwa.)

-- All of this is another way of saying that the 1990-1994 negotiation process has featured two dominant parties who have played dual roles as process managers and participants in their own process. Inevitably, they stacked the deck, and are still doing so over the KwaZulu crisis: i.e., the confrontation and the veiled threat to smash the KwaZulu authority serve the ANC goal of appearing as an invincible winner with time on its side; while the Nats gain as the law and order party, using the state of emergency to impose order on warring black factions -- an image that will appeal to a significant portion of South Africans of various races. But, by stacking the deck as twinned leaders, de Klerk and Mandela have lost the capacity to arrange an acceptable and credible "fix" for Buthelezi and his King. South Africans, arguably, can no longer solve this problem.

## THE PARTIES NEEDS AND YOUR LEVERAGE

1. De Klerk and the Nats find all this to be both annoying and acutely embarrassing. They pride themselves on having led the process to this point without significant outside involvement/intervention since the December 1988 Namibia-Angola accords. They have not encouraged your mission, and cannot be expected to play a creative role. Their pride at having gotten this far without having their switch of alliances and various double games blow up in their faces is countered by gnawing realities, however: (1) they do not really want to be forced to "crush" their former Inkatha partners, if only because of the visuals of betrayal of an ally at the bidding of their new ANC brothers; (2) with the Inkatha link to the South African Police now revealed and officially "broken", they may doubt whether the SADF officer corps can really be relied upon to do Mandela's bidding; (3) they must recognize that a bloody and ugly election could cost international financial support and erode hopes for desperately needed legitimacy. Thus, whatever Pretoria may think of the visuals of an Anglo-American *deus ex machina*, they will probably be relieved if you can work some magic, and might even be helpful later in making it stick. There is a lot at stake.

2. Buthelezi and the KwaZulu constituency do not have lots of options. They are the party (the only party) that wanted external mediation, and the ANC eventually agreed to it. At this point, your mission arguably represents their last Western hope. Given John Major's uncertain standing and Clinton's foreign policy disarray, they are lucky to have a few days of your time. You can play on that theme and should get attention by saying, in effect, "look, deal with me or

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you deal with Hillary; this here's the deal and there won't be another one as sweet." There are also more pleasant themes to recall. Buthelezi first visited Washington during the Nixon-Kissinger period (meeting me in 1971 while I worked for you at the NSC). There are many Americans who admired him over the years, and who instinctively feel sympathy for his situation. Now, however, he has made it too easy for his adversaries to demonize him. "It is time to stop this, establish some comprehensible priorities, place some hard choices before the other side, destroy the media stereotyping, and gain credit for saving your people".

The trick is to define Buthelezi's needs. He should be asked to do so. The Inkatha negotiating position remains obscure in the extreme, even to Buthelezi's friends. He fought for a strong federal constitution with ironclad entrenchment (i.e., no subsequent revision by the constituent assembly dominated by the centralizers). The 1993 agreements are not a total defeat, but a messy, slippery compromise, most of which is subject to change. But this is not the point. Buthelezi never really made it clear what should be entrenched: provincial autonomy, the constitution of the Natal-KwaZulu province, the role of the Royal house, or even the role of the existing KwaZulu homeland government (his power base) in a future provincial constitution. Skeptics suspect it is the latter he really wants, and that looks like a complete non-starter.

In other words, Buthelezi has refused to be understood on the "regional autonomy" point, at least until recently when he pushed his nephew King Goodwill to demand a sovereign Zulu kingdom. His pride and long memory focus on his leading role in the 1980s in something called the KwaZulu Indaba, a multiracial, regional negotiating forum which produced a quasi-democratic provincial constitution. That's probably his starting point, though it was sadly ignored by everyone else at the time. This is one area for discussion with him -- to see if he can articulate anything vaguely workable on regionalism-federalism.

-- Some believe the real problem is face and pride. Buthelezi is fiercely proud of his role in rejecting Pretoria's offer of bogus independence and refusing to negotiate with Pretoria until Mandela was released. He hungers to be treated as Mandela's equal -- above all, by Mandela himself. Is there some grand and lasting gesture that could heal this wound, and could the austere and authoritative Mandela countenance it? A lead role in some yet-to-be-named council of elders or the Senate, or the constitutional court, or an appointive vice-presidency in the new government? There are reports that Mandela actually offered him something, but it was done gracelessly through an aide and Buthelezi thought he'd been "dissed". (Buthelezi takes offense very quickly, behaves like a royal in heat, and is given to reciting long speeches of welcome

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to foreign visitors; you will probably have to endure one.)

— Is it a "win" that he needs, some significant change or fix to the existing agreements that he can point to as a serious improvement in the emerging constitutional-political order? He needs to speak clearly (and no one can speak for him reliably) on what he needs. If he needs a "win", this is not impossible: he has some real cards to play and could "pay" for a major concession. His ability to get his supporters to stop harrassing Zulu voters could obviously make it easier for the ANC to get out its vote. He is not likely to belatedly register his Inkatha party at the polls (since he'll be visibly defeated at the provincial level, his own backyard). But he could urge his supporters to vote: for the DP (the party of Zach de Beer, Helen Suzman, Harry Oppenheimer); for de Klerk's Nats; or for Constand Viljoen's new party. Each of these options has interesting implications.

— Your stroke with Buthelezi is your mastery of negotiation and your ability to utter profound truths about the way the world works — everywhere, including South Africa. You can destroy him forever in this mission, and you can also — but only with his help — develop a possible lifeline that the ANC will be hard pressed to deny. Your invitation and your presence help to legitimize Buthelezi's agenda. The possibility — even if only one chance in five — of your being able to move Mandela to rise above the blood-feuds of their subordinates gives you clout with the Chief. He has to arm you clearly, authoritatively, and irreversibly so that you can force the ANC to make a decision (instead of just enjoying a free ride).

3. The ANC has a talented negotiating team around Mandela. He tends to be substantially more flexible and reasonable in language, whereas some of his men sound hard. Thabo Mbeki is the most like Mandela. Cyril Ramaphosa is a seasoned and tough bargainer with a trade union background. Jacob Zuma the former head of military intelligence and the ANC's ranking Zulu is an outstanding person who has high stakes in a deal. Mohammed Valli Musa is a talented and tough negotiator who has played key roles. Mbeki and Ramaphosa, as you know, are in line as potential Mandela successors. None of these guys has much to gain from a disastrous, bloody birth of the "free South Africa". All of them have given up on Buthelezi's negotiators since the doves have no stroke and the hawks appear not to bend.

The ANC has agreed to this mediation as a gesture. They did not seek it. They may assume you will come to share their view of the problem, and that you will confirm the image of Buthelezi as a spoiler. They may not realize that you are serious (imagining that, like so many other VIP foreigners, you are simply trying to get into this mediagenic photo-op). They are sophisticated, and will

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understand if you talk knowingly of the occasional value of
the outsider as the holder of a concession which would not
be accepted if offered directly.

The ANC has been tough on the regional issue, but has
moved more than Inkatha likes to admit. The stumbling blocks
here are quite complex in terms of constitutional law, but
the core dispute is over entrenched regional powers and how
they might be amended later. (The terms of reference make
clear the variety of ways these guys can find to disagree on
federalism!) The related issue is discussed in South Africa
as ethnic self-determination "on a territorial basis" (item
6 on the terms of reference.) Interestingly, the ANC has
moved in this area in its proposal to King Goodwill to
institutionalize the Zulu monarchy -- but this is miles
away from Goodwill's latest demand for a sovereign kingdom.

The ANC's highest priority is the election it expects
to win overwhelmingly. Nothing should delay or complicate or
discredit this event. Thus, each Inkatha demand is viewed in
terms of how it impacts the election -- nationally,
internationally, in Natal generally, and in KwaZulu
territory. The Inkatha demand to postpone the election until
constitutional differences are resolved is greeted by an
outright ANC rejection of any delay. But -- and this needs
probing -- are they both talking about the same thing? Is a
regional or sub-regional postponement completely excluded?
Even if it produced a free vote within a few months?

THE ZONE OF NEGOTIABILITY

There are several areas for possible deal-making:

1. The bridge to a subsequent, post-election constitutional process. Essentially, there would need to be a shift now in the ANC's view of entrenchment, a shift that would be incorporated into the 1993 constitution now by act of the TEC and parliament. The thing to be entrenched would be the still-to-be-written Natal provincial constitution. The quid is Buthelezi's ability to instruct his people to let the vote take place unmolested. The problem, here, is what assurance does Buthelezi have that he will shape the Natal provincial constitution? In essence, he wants to write it without going through an election he might lose.

2. The idea of regional or sub-regional postponement of the election pending drafting of a Natal constitution. As Bobby Godsell will outline in more detail, Natal could be thought of in two pieces -- KwaZulu north of the Tugela and the rest of Natal. In effect, this might offer the chance for an entrenchment of local government based on a monarchy in part of Natal as part of broader regional constitution which would be entrenched.

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FROM CROCKERS AT HOME

TO

12039270065 P.11

3. In this concept, like the previous one, it is possible to imagine a role for an external panel of experts/lawyers. The idea is to enshrine the foreign input until the damned issue has been settled. The ultimate focus of appeal, should the experts mess it up, is back up to the co-chairs. (You should work to obtain a distinction between your role and that of the lawyers.) This legitimizes the result, helps press the parties to move, and provides the "clean hands" fix that may be needed. And, there is the intangible quality of "guarantee" implicit in a solution that included external input.

4. Finally, there is the separate matter of what might be done for Buthelezi himself as part of a fix. You need to bear in mind that once an election is held in KwaZulu, the lights and water (paid by Pretoria) are turned off, salaries and pensions stop or are vulnerable to being cut, and the whole thing could start to resemble Northern Ireland. It matters very much how the royal establishment are treated, and Buthelezi is their champion. Mandela needs coaching here as to how to make an offer Buthelezi cannot refuse and will actually welcome. The issue -- if you place yourself in Mandela's shoes -- is how to break Buthelezi away from the sycophants and hardliners who have his ear.

Hope this is helpful.

Warm regards,

Chet Crocker

TOTAL P.11

INSTITUTE OF INTERNATIONAL EDUCATION
809 UNITED NATIONS PLAZA, NEW YORK, NY 10017-3580

DIRECT DIAL (212) 984-

11 April 1994

Dr. Henry Kissinger
Kissinger Associates
350 Park Avenue
New York, NY

Dear Henry,

Five people possibly worth seeing --

ROBERT TUCKER

Office: 011-636-4682
Home: 011-728-5089
Fax: H- 728-4678

Bob flew with me to Ulundi five years ago when Gatsha seemed to be moving erratically. We, tried as old friends to convince him of democratic practices, but failed.

I mention him because the two of us were close friends of Gatsha.

Bob has since become effectively engaged with ANC on economic matters.

OSCAR DHLOMO

Office: 031-304-3863
Home: 03231-31742
Fax: 0358-202-493

One time secretary general of Inkata and at one time very close to Buthelezi

Perhaps five years ago left Inhata to form Center for Multi-Party Democracy, a solid institution based in Durban.

REV. MVUMI DANDALA

Office: 011-337-5938
Home: 011-452-2842
Fax: 011-337-7171

Central Methodist Church, Jo'burg who at great personal risk has attempted to achieve peace between Zulu hostel dwellers in Soweto and surrounding largely Xosa people.

TELEPHONE: (212) 883-8200 • TELEX: TRT 175977 • FAX: (212) 984-5452 • CABLE: INTERED

WELLS NTULI

Office: 011-634-0161

Home: 011-802-3506

Fax: 011-634-0038

Anglo Vaal Corporation -- an example of former Gatsha leaning
person now fully ANC. Also a good example of modern urban
African.

The above three African are Zulu-speaking.

CHRIS SAUNDERS

Office: 0322-21000

Home: 0322-21523

Long time supporter and close friend of Buthelezi, now
disillusioned with him but has certain constitutional issues he
considers inadequately handled (talkative and long on history!).

I can be reached in London at the Sheraton Park Tower 235-8050,
fax 235-8231.

Sincerely,

Wayne Fredericks

10 APR '94 17:03

FROM INDUSTRIAL RELATIONS

TO 0-0912039270065

# POLITICAL CHANGE IN SOUTH AFRICA: WALKING THE LAST MILE

In the weeks that lie ahead it is now unclear whether South Africa will make a transition to democracy or civil war, given the conflict between the ANC and the IFP. What is in dispute, and how can this be resolved?

## Issues in dispute

At least three separate clusters of problems can be identified:

* constitutional issues;

* political issues;

* and problems and disputes attached to the timing of the election.

## Constitutional Issues

In essence the dispute here is defined by the alternatives of writing the rules of future governance (i.e. new constitution) first, and then have elections; or, have elections first, and then write the rules.

The ANC and government argue that a reasonable compromise between these alternatives has been struck in the interim constitution. Its 34 constitutional principles are enshrined and will be defended by a newly established constitutional court. Secondly, a final constitution must be accepted by a two-third majority of the to-be-elected constitutional assembly (a joint sitting of the National Assembly and the Senate).

In response the IFP argue that critical aspects of the new constitution, including many of the 34 entrenched constitutional principles, are void because of their vagueness. They argue also that the deadlock breaking mechanism in respect of conflicts relating to the final constitution, where a two-thirds majority cannot be established, resort ultimately to simple majoritarianism.

10 APR '94 17:04

FROM INDUSTRIAL RELATIONS

TO 0-0912039270065

## Political Issues

Along with the above passionately held concerns about the interim constitution, a concern about the IFP's future political power base is also discernable. Faced with the prospect of polling third to the ANC and National Party in the national election, the IFP campaigned successfully for a second ballot for an election to a provincial legislature.

Two problems however remained.

Firstly, the IFP's clearest power base (at least a plurality, probably an outright majority) is to be found in Zululand itself, i.e. the Natal/KwaZulu province north of the Tugela River. Given its late start in the election the IFP could still poll third to the ANC and NP in Natal as a whole.

Of at least equal importance, the proposed powers of the provincial legislatures are neither original nor exclusive. Every power is conditional on some kind of national government override. Also, the provinces lack any form of original revenue powers. The only exclusive form of taxing powers available is that of a surcharge on gambling.

Therefore, the IFP faces the prospect of establishing its post April political base in an area not electorally ideal and one with inadequate and uncertain powers.

## The Timing Problems

Other parties have been campaigning in earnest from at least the adoption of the interim constitution at the end of last year. The IFP has instead been negotiating (in bilaterals with the government and the ANC) in an attempt to resolve the problems mentioned above. After agreeing to provisionally register for the polls, the IFP failed to submit a list of candidates timeously, and were therefore removed from the ballot papers. Two critical questions now emerge with regard to timing:

* is there enough time for the IFP to campaign effectively?

* can the IFP be restored to the ballot papers?

The IFP are proposing a 4 to 6 week delay in the poll. Both the government and ANC opposed any shift in polling dates (26th-28th April).

2

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FROM INDUSTRIAL RELATIONS

TO 0-0912039270065

The Independent Electoral Commission controls the logistical aspects of the electoral timetable. It was this body that took the decision to remove the IFP from the ballot paper in the second week of March, claiming then that an absolutely final deadline had been reached with regard to the printing of 80 million ballots. More recently media speculation (not denied by the IEC) suggested that as of 9th April it might still be possible to reprint the provincial ballots for the Natal/KwaZulu and Pretoria-Witwatersrand-Vereeniging (PWV) provinces, which two provinces together account for over 40% of the national electorate (and are the two provinces where IFP supporters are found in significant numbers).

## The Role of the Zulu King

Against the above background a fourth area of controversy must be noted. This is the role and function of the Zulu King, and the King's claim for "sovereignty" in a future South Africa.

It is vital to understand that this issue has only arisen in the light of the failure to solve at least the first two problems mentioned above. In the absence of what Buthelezi would describe as "real federalism" the role not only of the Zulu King, but more importantly of his subjects (who constitute both IFP and ANC supporters) has become a focus of debate.

Both the government and the ANC have attempted to address this issue by offering the King the role of a constitutional monarch at the provincial level. This offers him certain ceremonial functions and access to state resources, for himself and his royal household. This role could be extended to some real control over land communally owned by clans and sub-tribes of the Zulu "nation", as well as to a decision-making role in regard to customary or tribal law.

In contrast, Buthelezi has repeatedly argued that the controversy is not about issues relating to the person of the King, but rather to the status of his subjects, and the Zulu nation collectively in the new dispensation. At least, Buthelezi argues, the role of the King must be considered together with the constitutional issues of the nature of the future state - federal or unitary.

Against this gloomy background what could resolve these clusters of inter-related disputes?

10 APR '94 17:05 FROM INDUSTRIAL RELATIONS

TO 0-0912039270065

## Constitutional Issues

In essence there are two challenges here:

Firstly, a much clearer separation of powers as between province and central government is required. Almost certainly the easiest way to achieve this would be to more clearly circumscribe the role of central government with regard to provincial powers as set out in schedule six of the Interim Constitution. Whilst it will almost certainly not be possible to conclude such a process before the election, if the principle of defining in clear terms the role of central government with regard to schedule six was accepted, agreement could also be achieved on a process to complete this task, i.e. a panel of national and international constitutional experts.

Secondly once an acceptable division of powers between the centre and the provinces had been achieved, the second challenge would be to prevent this division from being undermined by simple majoritarianism at the centre. One option here would be to provide for the powers of provinces to be approved by provincial legislatures, and by a special majority, as well as being adopted at the centre. A guarantee of this sort is offered in the January amendment to constitutional principle XVIII, which promises that future provincial powers should not be "substantially less or inferior" to those presently offered. Given the effective concurrence of present provincial powers with those of the central government it is not surprising that this guarantee fails to inspire.

## Political issues

A sub-division of KwaZulu/Natal into two sub-regions along the Tugela River would recognize the IFP's real political base. It is almost certainly too late to effect this change before the election. However the same effect could be achieved by an agreement to aggregate votes separately in these two regions. All that this would require would be the delineation of counting districts along these lines. The ANC is currently negotiating with General Viljoen's Freedom Front to precisely this end. An agreement to constitute a "negotiating body" represented as per the voter count in Zululand (Natal/KwaZulu north of the Tugela) to conclude outstanding constitutional issues, and the role of the Zulu King, would also represent a functional equivalent of the proposed Volkstaatraad (new section 184 of the Interim Constitution.)

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Multiparty Negotiations in South Africa: A Historical
background 1991-1994.

The Convention for a Democratic South Africa or CODESA began amid high expectations in December 1991 and broke up in acrimony a mere six months later.

It began promisingly with the signature by all, save one of the participating governments and political organisations, of a Declaration of Intent which committed the signatories to the broad principles of a liberal democratic constitution and an undivided South Africa. The IFP initially refused to sign insisting that the reference to an 'undivided' South Africa ruled out the federal system which it demanded.

Chief Buthelezi, the IFP President also boycotted the CODESA 1 plenary because of a refusal by negotiators to accede to his demand that two additional delegations, one headed by the King of the Zulu, and the other representing the Zulu government, be included. This manoeuvre stressed the importance of Zulu ethnicity. When his demand could not be met, he stayed away in protest.

The two events had a bearing on discussions at CODESA - and the IFP's purported fear of a suspected National Party / ANC pact at its expense was to pose important problems for the negotiation process.

CODESA was confronted by two main challenges: Translating principles into more precise constitutional terms and, secondly, resolving the differences of approach to the process of constitution-making.

In contrast to the more streamlined procedures of the Multi-Party Negotiating Process or MPNP of 1993, CODESA was structured into five working groups, each assigned a specific task and each representative of all governments and political organisations.

While four of the five working groups succeeded in making substantial progress - and much of their work has been incorporated into the MPNP's deliberations - Working Group 2 failed to reach agreement on issues of substantive importance.

In order to accurately understand the present political impasse between the IFP on the one hand and the ANC and NP on the other, it is important to examine Working Group 2 whose task was to reach agreement on constitutional principles and on a constitution-making process.

To examine Working Group 2 is to undertake a journey into the very heart of the South African political divide, and the issues are far from resolved. Unopened files and unspoken agendas remain. But, precisely because they are unresolved and are crucial to the search for a workable settlement, the bewildering tapestry of developments - in and outside the meeting room - which shaped the deadlock must be understood, for only an understanding of past failures will prevent future ones.

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Two specific principles absorbed working group 2 debates: the balance between central, regional and local government, and the political participation of minorities. The essential divide was over the difference between a principle and a detail. The NP and IFP wanted as much as possible agreed, for they wanted to leave as little as they could to an elected assembly, which they opposed anyway. The ANC wanted as little as possible agreed and as much as possible left to the assembly. The NP/IFP delegation proposed agreement on four aspects of a principle and the balance between three levels of government. These were: recognition of the three tiers; democratic representation at each tier; legislative, executive and fiscal autonomy at each level, enshrined in the constitution and the delegation of powers from central to lower levels of government. The ANC responded merely by suggesting that a Bill of Rights be enforceable at each level. Thus a principle on the balance between levels of government was endorsed by Working Group 2.

At first, the NP and IFP saw the agreement as a victory, but soon different interpretations of what had apparently been agreed surfaced. The National Party and IFP argued that functions assigned to the different levels by the constitution could only be performed with the necessary financial authority. It followed, therefore, that fiscal competence must accompany the allocation of powers to the highest practicable degree. In other words, if lower levels were to have more powers, they needed the financial muscle to exercise them.

The ANC replied that fiscal powers were the same as legislative ones, since budgets were the product of legislation. But this was a symptom of a wider disagreement: it also now noted that, in its view, the principle agreed to did not reject the concepts of concurrent or overriding powers and the creation of metropolitan governments with a special status. Since concurrent powers, for example, meant that, where lower levels were granted powers on a political function, the central government would also retain powers over it - to perhaps set the policy guidelines in which lower levels would have to operate - the ANC was saying in effect that the agreement had not committed it to strong powers for the lower levels. So the NP, IFP and ANC now put vastly different interpretations on what they had agreed. This pattern of finding "agreement", and then to continue negotiating as if none had been reached, was to haunt all of negotiations on constitution principles.

In South African politics, disagreement over interpretations has become routine. Once a principle has been phrased, participants merely agree on what it is they have agreed: the fact that a principle is read out and apparently adopted does not seem to bind parties to it or prevent them raising later qualifications which water down the principle. In the end Working Group 2 broke up in disarray and thereby torpedoed CODESA. Ostensibly, the break-up was caused by differences over the percentages by which votes were to be taken in a constitution-making body and the ANC's insistence on the insertion of a deadlock-breaking mechanism into the constitution-making process. But these issues, while real enough in themselves, were the external symptoms of the real cause, which was the wide gulf in constitutional thinking among the major actors - the ANC, IFP and NP - and pervasive mutual suspicions.

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After the breakdown of CODESA, the government and the ANC began meeting in a series of bi-lateral talks to hammer out details of a settlement. By March 1993 they had agreed on a transitional executive which would prepare the way for an elected government and constitutional assembly, taking decisions by a two-third majority. A deadline would be imposed on constitution making but no new election would be held once a new constitution was agreed. The interim government would rule for at least five years and would comprise all parties which won more than an agreed share of the vote. The principle of autonomy for regional government was also agreed. The agreement became known as the Record of Understanding.

No sooner had the Record of Understanding been signed than the two negotiators were reminded, more forcefully than at CODESA, that there was a third party too, the IFP. The IFP denounced the Record of Understanding and refused to be bound by it. At a Shaka day rally, at which King Goodwill Zulu denounced the agreement as an attempt to "wipe us off the face of earth as Zulu", Buthelezi announced the IFP's withdrawal from multiparty negotiations. The IFP unveiled a 'federal' constitution for Natal-Kwazulu and demanded a referendum in the region on the document; if voters favoured the proposal, the IFP insisted, it would become non negotiable.

In further bi-lateral meetings between the Government and IFP, however, the problem was resolved and the IFP participated in the Multi Party Planning conference on March 1993 and committed itself to continue negotiations "no matter what happened". The IFP and Kwazulu government sent two separate delegations to the planning conference. On July 2, 1993 the negotiating forum agreed by sufficient consensus to the election date being 27 April 1994. The chairman of the forum Mr Pravine Gordham, ruled that sufficient consensus existed for the adoption of the election date, despite the fact that 7 of the 26 participating organisations, including the IFP, had opposed its adoption. The decision led to the IFP and Kwazulu government walking out of the negotiating forum and subsequently suspending their participation in the talks. The Kwazulu government subsequently challenged sufficient consensus as applied by Mr Gordham in the Supreme Court in Pretoria. The case was dismissed with costs.

By withdrawing from negotiations, the IFP was not only protesting against bi-lateralism practised by ANC and NP but it was also expressing concern about technical procedural rule agreements in multi party negotiations, known as sufficient consensus. A popular view had emerged that sufficient consensus was only achieved when the ANC and NP agreed. Differences over constitutional principles between the NP and IFP had since emerged. The NP had conceded the constituent assembly in the Record of Understanding.

The IFP called the NP constitutional shift in favour of the constitutional assembly political betrayal. It rejected the two phase process of writing a constitution and opposed any elected constitutional making body. The IFP wanted the multi party negotiations process to decide on the kind of state South Africa would have - ie. a federal or unitary state. Once this was done constitutional principles could be drawn up and agreed upon. A constitutional panel of experts should then draw up the constitution which would be referred back to the multi party negotiating process for approval. It could then be put to the electorate for approval. This process was important because the IFP argued in framing a set of political rules which would apply to all, minority views were as important as majority ones.

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In January 1994, the fourth constitutional draft was submitted to the South African parliament for debate and approval. The draft made provision for a bicameral legislation consisting of a national assembly and a senate. It also provided for a 400 national assembly elected by proportional representation, 200 of whose numbers would be elected on national lists and 200 on provincial lists.

It also endowed provincial governments and a national government with concurrent powers. It provided that an act of parliament would prevail where a provincial law was inconsistent to the extent that:

1. the act dealt with a matter that could not be effectively regulated by provincial legislation and

2. It was necessary for the determination of national economy politics, the maintenance of economy unity, the protection of the common market or the maintenance of national security.

Provinces were entitled to an equitable share of revenue collected nationally. They were also entitled to raise taxes and show levies, provided that they were authorised to do so by an act of parliament. The legislation also provided that immediately after the first general election, provinces would be entitled, if they so wished, to make and adopt their own constitution by a two-third majority. However, provincial constitutions were not to conflict with national constitutional principles or the national constitution. Furthermore, such a provincial constitution would also have to be compatible with the final national constitution.

The draft transitional constitution mandated the constitutional court to certify that such a provincial constitution complied with the principles and relevant constitution.

All attempts to draw the IFP back to multi party negotiations have failed. A number of bi-lateral meetings were held between the government and IFP as well as the IFP and ANC, to try to resolve the IFP's criticisms regarding the negotiations process and to draw it back into multi party negotiations. The IFP declared in August that it would stay out of the negotiations until crucial decisions taken without its approval had been set aside.

In 1994 Mr Mandela made another serious attempt to draw the IFP back to negotiations. A high profile meeting between Mr Mandela and Chief Buthelezi was held in Durban. The IFP's concern now is that a constitution which provides no exclusive powers for provincial governments, which denies them the ability to raise taxes without the permission of national government and which gives the national government wide ranging powers to override, is not a federal constitution whatever claims to the contrary may be made.

All eyes are now focused on this international mediation, which is seen as a last ditch attempt to save South Africa from what increasingly looks like another Angolan theatre.

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SOUTH AFRICA: INTERNATIONAL MEDIATION

1. Buthelezi appears keen on Lord Carrington as a mediator. But Inkatha have failed to meet deadline for registration of candidates and Buthelezi's intentions therefore remain unclear. Some important conditions will need to be met before mediation could be attempted.

2. Lord Carrington and I [Sir Anthony Reeve] met with Buthelezi in Durban on 11 March. Buthelezi received him warmly. He mentioned early on in the conversation that he had heard Lord Carrington spoken of as a possible mediator and said that he would certainly welcome this. Buthelezi did not refer to anyone else by name. He said that his original idea had been for some international lawyers, but he now accepted that it would be possible to combine these with some "eminent people".

3. In response to questions Buthelezi confirmed that he would be prepared to take part in the elections if the outstanding problems could be resolved through mediation. These were essentially the items listed in the IFP's paper of 19 December (powers and functions of the provinces and the ways of entrenching these) plus the separate issue of the status of the Zulu king. The IFP's talks with the ANC about mediation should, in his view, continue despite Viljoen having publicly stated that they had been suspended because of the situation in Bop. He himself was not up to speed on the talks but was expecting a progress report shortly.

4. Buthelezi made clear that he entirely accepted the need for the Government to give its blessing to the idea of mediation. It would simply not be possible to proceed if De Klerk, as Head of State, remained opposed to it.

5. I pointed out that the deadline for the submission of at least a preliminary party list expired later that evening. Judge Kriegler had told me that if a party did not submit at least one name, it would have to be removed from the ballot paper for which printing was to begin on 12 March. Buthelezi made no response (and Inkatha have not in the event submitted a list by the deadline). Nor at any stage did Buthelezi indicate how the concept of mediation was to be reconciled with an election date of 27 April. I said that it would clearly be essential for any mediators to be assured that the door to election participation remained open : otherwise they would all be wasting their time. Buthelezi

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agreed but again declined to be drawn.

6. Lord Carrington's views on mediation are very similar to Dr Kissinger's. He too would prefer a small group which would include Dr Kissinger as well as himself, though he also thinks that an African (but not Nyerere) might be needed for political/presentational reasons.

7. It is very difficult to judge the prospects for success. They depend crucially on whether Buthelezi is seeking a face-saving device to allow him to participate or whether he is merely stalling with no serious intention of coming in. After many discussion with him, I still cannot answer that question. Another essential point will be to establish that the door has not closed on IFP participation in the elections because of time constraints. The difficulty here is not the legislation, which could always be amended, but the technical/practical problem of printing the ballot papers in time. The idea of some sub-contracting by De La Rue has been mentioned in the press as one possible way of deferring the deadline. In any case this is a matter for the IFP and ANC to work out before they approach the mediators. The same applies to any question of postponing the election if that were what was required to bring the IFP in. It would seem to me important for mediators to avoid involvement in this issue which will clearly be highly controversial domestically.

8. To summarise, I suggest that the following are the essential points on which Lord Carrington would need assurances before agreeing to participate in mediation :

(i) there must be a request from all three parties, preferably endorsed by the TEC;

(ii) the terms of reference for the mediators must be clearly spelled out. For example these will need to specify whether the mediators should get involved in areas extending beyond Inkatha's participation. It would in my view be very difficult to get embroiled over eg. a Volkstaat for the Afrikaners;

(iii) Lord Carrington would obviously need to know in advance who the other mediators were to be. The inclusion of Dr Kissinger might be a sine qua non for his own participation;

(iv) It must be clear that, if the mediation is successful, there will still be time for the IFP

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REPORT BY SIR ANTHONY REEVE ON
INTERNATIONAL MEDIATION IN SOUTH AFRICA

Summary

Summary
1. Government hoping to convene further meetings involving De Klerk, Mandela, Buthelezi and the Zulu King : concerned that international mediation might lead to postponement of the election. But we should continue to keep our options open.

Detail

2. The Minister of Constitutional Development telephoned me last night (24 March).

3. Meyer said that he had just come from a discussion with De Klerk. He had also attended a meeting between De Klerk and Mandela earlier that evening. The government was finding it difficult to reach a final view on the advisability of international mediation. It was clear that the ANC and the IFP had not so far been able to agree on terms of reference, or indeed on the objectives of any such mediation.

4. The government was therefore looking at possible alternatives. As a first step De Klerk would be seeing Buthelezi again, probably on 26 March. His aim would be to convene a meeting of the three leaders (himself, Buthelezi and Mandela) plus the King of the Zulus and there were some indications that Mandela would go along with this. An alternative might be to try to involve some African leaders but Meyer thought this was less likely to get off the ground.

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5. Meyer indicated that the government's main concern was that international mediation might lead to a postponement of the election. De Klerk was therefore hoping that a successful meeting with Buthelezi might open the way to further direct talks between the leaders.

6. It seems unlikely that this last ditch attempt by De Klerk to engage Buthelezi will succeed. But it would clearly be impossible for international mediation to get started until all domestic attempts at reconciliation have been exhausted. We will need to review the position after these meetings have taken place.

7. You will no doubt want to brief Lord Carrington on the Government's position. But I do not think it changes the advice in my TUR, ie. that we should continue to keep our options open where international mediation is concerned.

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Diary No.

Initialed By

PAUL, WEISS, RIFKIND, WHARTON & GARRISON

Office Memorandum

Date April 2, 1994

Memo of Fact

Memo of Law

To A. Leon Higginbotham, Jr.

Subject South Africa Mediation Effort

From Christian Merkling

The following is a summary comparison of the ANC and Inkatha
Terms of Reference with respect to the composition of the Mediation Panel, its
functions, the scope of the negotiations being mediated, and miscellaneous matters:

I. **Composition of Panel**

Both parties agree on seven members (and a chairperson, adds the ANC¹), based in Cape Town (Inkatha adds²), assisted by four "qualified" South African constitutional lawyers (the ANC says "properly" qualified, and conditions their assistance on the Panel's "request"³), two appointed by each side. Funding (which Inkatha specifies will cover such lawyers and may cover other items⁴) is to

1/ ANC Clause 9.0

2/ Inkatha Clause 3.0

3/ ANC Clause 10.0

4/ Inkatha Clause 17.1

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be provided through a trust receiving contributions from independent sources, which
trust "will" (Inkatha⁵') or "may" (ANC⁶') include party leaders.

## II. Functions of Panel

*   **ANC:** To be "involved" in and "assist" in resolving a "constitutional"⁷' dispute between the parties, "having studied these matters and assessed them in the context of the transformation of South Africa into a non-racial and non-sexist democracy"¹⁸' (hint of an objective benchmark). The Panel "shall not be an adjudicator."¹⁹

*   **Inkatha:** To "supervise and guide" negotiations, "under [the Panel's] auspices,"¹⁰' so as to "achieve an all-inclusive constitutional settlement between the parties as a necessary condition for long-lasting peace, democracy and stability in South Africa"¹¹' and so as to "reconcile differences"¹²' (hint of a brokering role).

5' Inkatha Clause 17.1

6' ANC Clause 12.1

7' ANC Clause 1.0

8' ANC Clause 5.0

9' ANC Clause 5.0.1

10' Inkatha Clauses 1.0 and 2.0

11' Inkatha Clause 4.0

12' Inkatha Clauses 5.3 and 6.0

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The Panel "is not expected to take a position on any of the issues being debated in the negotiations"¹³/ (but query whether it may defy such expectations?).

### III. Scope of Negotiations

The following topics are agreed:

(A) The powers to be given to the provinces (Inkatha specifically identifies several issues under this rubric¹⁴/).

(B) The fiscal and financial autonomy of the provinces.

(C) The autonomy of the constitution-making process at provincial level (to which Inkatha adds "preservation of provincial autonomy during future stages of constitutional development"¹⁵/).

(D) The "adjudicatory role of the Constitutional Court with regard to" (ANC¹⁶/), -- or the "manner of verification of the Constitutional Court in" (Inkatha¹⁷/), -- national and provincial constitution-making.

13/ Inkatha Clause 15.1

14/ Inkatha Clause 6.1

15/ Inkatha Clause 6.3

16/ ANC Clause 3.0.1.4

17/ Inkatha Clause 6.4

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(I) Stated obstacles to Inkatha's entry into the elections process: required amendments to the interim constitution; "rationalization of the electoral process"; and "timetables translating the terms of constitutional settlement into conditions for free and fair elections in which all parties can compete on an equal footing."25/

## IV. Miscellaneous

Both parties agree that the procedure and structure of negotiations will be decided by the parties, "on the basis of recommendations" of the Panel (Inkatha25'), or which procedures the Panel shall "be free to . . . propose" (ANC27'). Media statements "of the Panel" (Inkatha; the ANC does not explicitly so limit it28') without the consent of all will be prohibited.

Inkatha, at Clause 11 and Clauses 14 through 16.1, makes several other points not contained in the ANC document (including, most importantly, the right of other parties to "join the negotiations, and the constitutional and electoral process" -- thus suggesting a role for the Panel as something akin to an umpire of last resort for the whole pre-elections period).

C.M.

25/ Inkatha Clauses 9.0 through 9.3

26/ Inkatha Clause 12.0

27/ ANC Clause 8.0

28/ Inkatha Clause 13.0; ANC Clause 13.0

Doc #:D82:173431.1 30-070

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"Democracy means freedom to choose"

INKATHA

Inkatha Freedom Party

IQembu leNkatha Yenkuleleko

WHAT IS WRONG WITH THE 1993 CONSTITUTION
OF THE REPUBLIC OF SOUTH AFRICA
(as amended)

These are a few of the major flaws of the 1993 RSA constitution, which the Inkatha Freedom Party is on record as having fought with all means at its avail throughout the entire negotiations process.

* The 1993 RSA Constitution empowers a Constituent Assembly which within two years MUST scrap and re-write this Constitution, including the Bill of Rights and most of the constitutional guarantees set forth in the present Constitution.

* The Constituent Assembly may adopt a new Constitution within three months after elections by virtue of a mere 50 plus one per cent majority. The Constitution so adopted will be the only Constitution to be submitted at a referendum called to ratify the Constitution with a 60% majority of votes. It is possible to resort to this deadlock-breaking mechanism on the second day of session of the Constituent Assembly, as soon as any submitted constitutional proposal has failed to reach a two-thirds majority.

* The Constituent Assembly will re-write the entire Constitution, including the Bill of Rights, as it best sees fit, limited only by a set of exceedingly vague Constitutional Principles which have already proven to be compatible with many and divergent constitutional options and to be open to the most divergent interpretations.

* The justiciability of the Constitutional Principles is diluted by the possibility that when the Constitutional Court assesses the compliance of the second constitution with such Principles, it does so without hearing any arguments or receiving any evidence.

* These Constitutional Principles are flawed, for, inter alia, they do not require that the second constitution provides for elected provincial legislatures and there is no provision for a Constitutional Court which means that the second constitution need not be justiciable. Moreover, the principles will allow a situation in which the second constitution could be partially or entirely discarded and replaced by a third constitution freely adopted by Parliament a week later with a mere 50 plus one per cent majority.

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President: The Hon. Prince Mangosuthu G. Buthelezi

National Chairman: Dr. F.T. Mdialose

P.14

* The Constitution preserves the single-sovereignty South African unitary state, thereby excluding the establishment of a Federation of States modelled after the USA or Germany.

* The Constitution merely establishes interim provinces with markedly limited interim powers. Most of the interim powers are powers usually exercised by local government. Provinces do not have full competence over essential matters such as their own provincial civil service, the provincial police, provincial auditing, budgeting and finance, and the establishment of local government.

* The powers of the provinces are less extensive than those of the self-governing territories. They are also far less extensive than the powers of "regions" of Italy and Spain. By no means do they compare with the powers exercised by any member state of a Federation. They are even less extensive than the powers exercised by many United States counties, which are sub-divisions of the member states of the USA.

* The powers of the provinces are not exclusive but in effect concurrent, which means that in a province there may be both national and provincial hospitals, both national schools and provincial schools, both national and provincial housing programmes, and so on and so forth.

* The powers of the provinces are extremely limited by broad and restricting over-rides. In fact, the concurrent competence of a province will fade away every time the national government so wishes for reasons of national and economic policies, maintenance of economic unity, protection of the environment, protection of inter-provincial commerce, protection of common market, co-ordination by uniform norms and standards, including but not limited to uniform standards for the rendering of public services, and in other situations. It is possible to identify at least 15 over-rides.

* The provinces will have no independent financial and fiscal resources to allow them to exercise their powers, with the exception of the power to impose turn-over taxes on casinos, gambling, lotteries, betting and wagering. In the final analysis, the allocation of all provincial revenues are decided by Parliament. Even user charges, such as provincial schools or hospital fees, are in the final analysis, regulated on the basis of the recommendations of the central government's Financial and Fiscal Commission.

* Fiscal transfers from the central government to the provinces may be "conditional" rather than merely "earmarked" which implies the possibility to use financial leverage to control provincial policies and policy-making. Moreover, the central government may transfer financial resources directly to the local governments, by-passing and undermining the provincial government.

* There is uncertainty on the future of the constitutional autonomy of provinces, for the constitution requires that the Constituent Assembly shall decide on new powers and functions for provinces as a matter of priority after elections.

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* The Senate, which is meant to express the interests of the provinces, has no power in the adoption of legislation which carries financial consequences, i.e. the most significant legislation in the country.

* The provinces may adopt provincial constitutions which are subject to the Constituent Assembly and to the Commission on Provincial Government. Furthermore, a possibly hostile Constitutional Court could delay without reason the coming into force of such provincial constitutions.

* It could be possible that at the time of their inception, the new provinces will have little or no administrative functions. In fact, the rationalisation process has been designed so as to give discretion to the central government on the transfer of existing laws and assets to the new provinces. This will allow the central government to retain for itself the administration of laws and the assets presently under the control of provinces, self-governing territories and TBVC states, even if they are related to the powers of the new provinces. For instance, a KwaZulu Government hospital could very well become either a provincial or a national hospital at the discretion of the new government, along with the health laws adopted by the KwaZulu Legislative Assembly.

* For many intents and purposes there will be a unified police, and a unified civil service both for the national and provincial governments, in addition to a monolithic defence force. Even auditing functions are unified and provincial governments do not have the right to audit for themselves the money which they raise and spend.

* The protection of indigenous law is not significant because it remains subordinate to the discretion of both national and provincial legislation. There is no recognition for an active and participatory political role of traditional leaders and there is no recognition of the Kingdom of KwaZulu. There is no entrenchment of indigenous courts and no protection for the indigenous law and tenure system [communal property].

* The Constitution contains no protection for the integrity and pre-eminence of civil society and has no limitation on the role and purpose of government. It rejects the notion that social and cultural formations should be recognised as a sphere of protected constitutional autonomy which the government could encroach upon only for compelling reasons of public interests. Therefore, the next government could legitimately take over chambers of commerce, professional associations, museums and theatres, sports and recreations, arts and culture, universities, ethnic and traditional formations, et cetera.

* The Constitution has no provision mandating privatisation of the huge South African parastatal or limiting government intervention in economic matters. It has no limits or guarantees against nationalisation, and does not protect the free market enterprise system which can be severely tampered with for almost any reason of governmental policy.

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* The Bill of Rights is deficient for it does not recognise many of the modern human rights, and ignores collective and group rights usually recognised by modern and advanced constitutions. A comparison with the list of internationally recognised human rights or with the Bill of Rights in the Constitution of the State of KwaZulu/Natal shows that South Africans have been severely short-changed, for many essential rights are excluded.

* The Bill of Rights is fatally flawed by a loophole which would allow Parliament to limit human rights to the extent it best sees fit as long as such limitation is "reasonable" even if such limitation need not to be "necessary". Only for a few human rights does the Constitution require that the limitation by Parliament be "necessary."

* The Bill of Rights is ineffective because it will apply only to legal relations between individuals and government. Therefore, human rights could be legitimately violated in employment, family, school and associative relationships, with the exception of the protection against discrimination. This "vertical" application [i.e. between government and individuals only] fails the modern international test of human rights protection.

+ The Bill of Rights is threatened by the possibility of suspension due to a declaration of a state of emergency, and by restrictive rules of judicial interpretation which, *inter alia*, do not account for the need to interpret human rights in keeping with changing situations in society. [*evolutive interpretation*]

* The Bill of Rights is not accompanied by a Bill of social obligations and responsibilities.

* In the opinion of many the property clause has been phrased so as to create a loophole in the requirement of compensation for appropriation

* The political system promoted by this Constitution is centred around the pre-eminence of political parties which will become the only arbiters of our government and public life. The party national list system will allow political parties' leadership to decide who is elected to public office. Moreover the requirement that elected representatives must maintain their political party membership in order to remain in office will have a chilling effect on their freedom of conscience and will allow political party leadership to prevent any dissent.

* Parliament is the prisoner of government. The many omissions in relation to parliamentary powers and guarantees undermine the role of parliament vis-a-vis government. No provision is made for parliamentary control over government. The role of Parliament in the legislative process is rather weak. Parliament does not even have the power to fire government without automatically dissolving itself. This is a most unusual provision in continental parliamentary systems, and will eliminate parliamentary leverage over government.

* The entire system of government remains unduly top heavy and will preserve the present autocratic and authoritarian characteristics of the South African State. These characteristics are coupled with the fact that civil society is given little or no power to control and participate in government outside political representation in Parliament, while the form of state remains unitary with limited provincial devolution.

* The Constitution contains a diluted form of power-sharing in the form of a mandatory government of national unity. This type of government will not work and will create enormous political and institutional tensions, while failing to effectively govern the country. Mandatory governments of national unity and power-sharing arrangements have often proven to be formulae for disasters.

* The Constitution has failed to introduce the long sought after notion of administrative justice and fairness in South Africa, for it does not allow judicial review of administrative actions which are arbitrary, capricious or in violation of law, nor does it require the participation of affected interests in administrative decision-making procedures.

* The Constitution provides for a by-right State pension for all those who engaged in armed struggle and revolutionary activities of any type, and further provides for general indemnity for the most despicable and deplorable crimes committed with political intent or for a political reason.

* The Constitution provides for indemnity for all those who committed any type of crime with a political reason or motivation.

+ The provisions on the Constitutional Court are flawed, and the Court does not have the required powers to act as the "custodian of the Constitution" and as an arbiter of constitutional adjudication on the basis of the model of the great European Constitutional Court.

* In the Constitution there are none of the IFP-proposed techniques and mechanisms designed to directly empower civil society to control government so as to avoid corruption, excessive and unjustified growth of government, mal-governance, nepotism and all the other well known ancient and modern "evils" of government.

* It is often said that a Constitution should be drafted not to read but rather to sing, for it should serve also as an educational tool for children and adults alike on the fundamental values of society. This constitution is as prosaic as a tax code, lacks values and principles and is of unparalleled complexity.

The foregoing are just some of the major flaws in the 1993 RSA Constitution of South Africa as it was amended in February 1994. They are there not by accident or by omission. In fact, the IFP is on record as having fought to remove each of the flaws and to improve the Constitution. The amendments adopted by Parliament in February 1994 have addressed some other flaws which were previously identified by the IFP, but are far removed from what is required to turn the 1993 constitution into an acceptable document.

MAR 31 '94 08:58PM SUE FELGATE

The effort of the IFP to improve the constitution has met fierce and intransigent opposition from the African National Congress/South African Communist Party alliance which clearly showed itself to have a significant vested interest in having the Constitution written at it ie.

The IFP battled to establish a true federation of states modelled after the United States model. The bilateralism and connivance between the ANC/SACP alliance and the South African Government-National Party ensured that all the constitutional proposals considered by any of the committees of the World Trade Centre excluded the possibility of establishing a federation of states. The IFP proposals were not even considered and discussed and this forced the IFP's final walk-out on July 2, 1993. Thereinafter, the IFP negotiated on a daily basis with its counterparts to improve the Constitution, but received absolutely no concessions from the ANC/SACP alliance.

March 1994

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[N]

# INKATHA
Inkatha Freedom Party

IQembu leNkatha Yenkululeko

## AMENDMENTS TO THE
THE CONSTITUTION
OF THE REPUBLIC OF SOUTH AFRICA

### YELLOW PAPER
(as amended)

February 25, 1994

## I. PROVINCIAL POWERS

### A. Section 126 is to be replaced by the formulation attached hereto as Annexure A.

#### Consequential Amendments

### B. Provincial Civil Service

Section 212 (1) is to be amended to substitute the word "...Republic..." with the words "...National Government...," and an additional subsection is to be added to read: "(9) The provisions of this section shall apply also to the provincial civil service in all matters which are not otherwise regulated by a provincial law."

### C. Local Government

Section 177 is to be amended to add the words: "Unless otherwise provided by a provincial law,..." before the words: "A council". Section 179 is to be amended to add an additional subsection which reads "(6) The provisions of this section shall apply to local governments unless it is otherwise provided for by a provincial law." Chapter 10 is to be amended to replace the words: "competent legislature" with the words: "provincial legislature".

### D. Provincial Police

Section 214(1) shall be amended to delete the following words "...and provincial..." which appear twice in the text. Section 214(2)(a) is to be amended to delete the words: "...and a Commissioner for each province...". Section 214(2)(b) is to be amended to delete the words: "...at all levels...". Section 214(2) is to be amended to add a third subsection which reads: "(c) The provisions of this subsection shall apply, mutatis mutandis, to the provincial police service to be established and regulated by a provincial law." Section 217 (1) is to be amended to add the word "provincial" before the word "...Service...". Section 217(2)(a) is to be amended to delete the words: "...in terms of section 218(1)(b)". Section 217(2)(b) is to be amended to add the word "provincial" before the word "...law." Section 217(3) and (4) are to be deleted. Section 218(1)(b), the two provisions in subsections (1)(d) and (1)(k) respectively, and subsection (1)(n) are to be deleted. Section 219 (1) is to be amended to delete the words: "Subject to the provisions of section 214 and section 218 and". Section 219(1)(g) is to be amended to delete the words: "up to the rank of lieutenant-colonel". Section 219 (2) [heading only] and 219 (2)(b) are to be deleted and items (a), (c) and (d) are to be listed respectively as items (h), (i) and (j) of subsection (1). Section 221 (1) is to be amended to replace the words: "The Act of Parliament referred to in section 214(1)..." with the words: "The law of the competent legislature shall". Section 221 is to be amended to replace the words: "The Act" with the words: "the law" wherever they occur. Section 221(3) is to be amended to replace the words: "in section 214" with the words: "in subsection (1)"

President: The Hon. Prince Mangoseuthu G. Buthelezi

National Chairman: Dr. F.T. Mdalaoca

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E. Legislative Role of the Provinces through the Senate
Article 60 is to be deleted along with the words "...60(1)..." in article 59(3).

## II. PROVINCIAL FISCAL AND FINANCIAL AUTONOMY

A. Sections 155-9 is to be replaced by the formulation attached hereto as Annexure B.

### Consequential Amendments

B. Preserving Provincial fiscal autonomy
The first sentence of Constitutional Principle XXV is to be amended to read: "National and provincial governments shall have fiscal powers and functions, including the right to raise taxes, surcharges, levies and user charges".

C. Provincial auditing autonomy
Section 193 is to be amended to delete any reference to provincial and local governments.

Section 191 is to be amended to add an additional subsection which reads: "(12) Unless otherwise provided for in a provincial law, the provisions of this section shall apply to a provincial Auditor-General to be established and regulated by a law of a province".

Section 193 is to be amended to add an additional subsection which reads "(9) Unless otherwise provided for in a provincial law, the provisions of this section shall apply to a provincial Auditor-General to be established and regulated by a law of a province".

## III. PROVINCIAL CONSTITUTIONS

A. Section 160
Section 160 is to be amended and substituted by the following:

(1) The provincial legislature shall be entitled to pass a constitution for the province by two-thirds majority of its members and such constitution may determine any matter provided for in this constitution relating to the structure, powers and functions of that province; provided that such constitution shall

(a) be consistent with the provisions of Chapter 3;

(b) be consistent with Constitutional Principles set out in Schedule 4; and

(c) incorporate sections 126 and 155 to 159 of this constitution.

(2) A provincial legislature may make such arrangements as it deems appropriate in connection with its proceedings relating to the drafting and consideration of a provincial constitution.

(3) The Constitutional Assembly shall, subject to the provisions of sections 61 and 62 and notwithstanding the provisions of Chapter 5, be entitled to regulate affairs relating to provinces only to the extent that such regulation is not inconsistent with the constitution passed by a province; provided that such regulation

(a) shall comply with the Constitutional Principles set out in Schedule 4,

(b) be approved by two-thirds majority of all the members of every provincial legislature concerned, and

(c) be certified by the Constitutional Court as to its consistency with said Constitutional Principles.

(4) The text of a provincial constitution passed by the provincial legislature shall be of no force and effect unless the Constitutional Court has certified that it is not inconsistent with a provision referred to in subsection (1); provided that the decision of the Constitutional Court to certify shall be taken on the basis of evidence and arguments presented before that Court, which certification shall be given within

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* The Bill of Rights is ineffective because it will apply only to legal relations between individuals and government. Therefore, human rights could be legitimately violated in employment, family, school and associative relationships, with the exception of the protection against discrimination. This "vertical" application [i.e. between government and individuals only] fails the modern international test of human right protection.

* The Bill of Rights is threatened by the possibility of suspension due to a declaration of a state of emergency, and by restrictive rules of judicial interpretation which, *inter alia*, do not account for the need to interpret human rights in keeping with changing situations in society. [evolutive interpretation.]

* In the opinion of many the property clause has been phrased so as to create a loophole in the requirement of compensation for expropriation.

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* The provisions on the Constitutional Court are flawed, and the Court does not have the required powers to act as the "custodian of the Constitution" and as an arbiter of constitutional adjudication on the basis of the model of the great European Constitutional Court.

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The effort of the IFP to improve the constitution has met fierce and intransigent opposition from the African National Congress/South African Communist Party alliance which clearly showed itself to have a significant vested interest in having the Constitution written at it is.

March 1994

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thirty days of the provincial constitution being referred to the Court, falling which the provincial constitution will come in force and effect.

(5) A decision of the Constitutional Court in terms of subsection (4) certifying that the text of a provincial constitution is not inconsistent with the said provisions shall be final and binding and no court of law shall have jurisdiction to inquire into or pronounce upon the validity of such text or any provision thereof.

### Consequential Amendments

**B. Section 161**

Section 161 is to be amended to add an additional subsection which reads: "(6) The provisions of this section shall apply only to the extent that a province has not adopted its provincial constitution in terms of section 160 or that it is not otherwise provided for in a law of a province."

**C. Section 164**

Section 164 (2) is to be amended to add an additional subsection which reads: "(g) The provisions of this subsection shall apply only to the extent that a province has not adopted its provincial constitution in terms of section 160 or that it is not otherwise provided for in a law of a province."

## IV. CONSTITUTION MAKING PROCESS

**A. Constitutional Court**

Section 71 (2) is to be amended to add the following words at the end thereof: "Provided that such certification shall be on the basis of received evidence and arguments presented, which decision shall be motivated."

**B. Deadlock Breaking Mechanisms/Entrenchment of Bill of Rights**

Section 73 is to be amended to add a new subsection which reads: "(14) The procedure set out in subsection (3) to (12) shall not be applicable to amend provisions in this constitution relating to boundaries, powers and functions of the provinces, the provisions of Chapter 3, and the provisions relating to the Constitutional Court. Any amendment of the provisions of Chapter 3 shall require a three-fourths majority of all the members of the Constitutional Assembly and may not diminish any of the rights set out in that Chapter. Any amendment to the powers and functions of the provinces may not diminish the degree of recognition and protection of provincial autonomy".

Section 73 (1) is to be amended to delete the words: "...within two years...".
Section 73 (3) is to be amended to add the words "after two years" after the word "If".

**C.** Section 74 (1) is to be amended to insert a third point to read: "(c) subsection 73 (14) of this constitution."

## OTHER CONSTITUTIONAL REQUIREMENTS

**A. Provincial residency of candidates**

Section 132(1) is to be amended to add the following words: "and is ordinarily resident in that province."

**B. Citizenship of Voters**

Section 6(a)(ii) is to be deleted.

**C. Transfer of assets and administrative functions to Provinces**

Section 235(6)(b)(i) is to be amended to read: "...if any such law was immediately before the commencement of this constitution administered by, or under the authority of a functionary referred

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to in subsection (1)(a), (b) or (c), be administered by the competent provincial authority within the jurisdiction of the government of the province in which that law applies, to the extent that it so applies.". Section 235(8)(a) is to be deleted. Section 235(8)(b) is to be amended to read: "When the administration of a law vests in a competent authority in terms of this constitution, the President may to the extent that it is necessary for the efficient carrying out of the assignment (i) amend....". Section 235(9)(a) is to be amended to replace the words: "14 days" with the words: "one year". Section 239(1)(b) is to be amended to delete the words: "subject to paragraph (c)" and section 239(1)(c) is to be deleted. Section 230(1) is to be amended to add to the end thereof the following words: "Provided that the laws listed in Schedule 7 which have a bearing on the status, integrity and autonomy of the self-governing territories and TBVC states shall not be repealed until the Premier of each of the affected new provinces has assumed his or her office.".

D. Expropriation

Section 28 (2) is to be amended to substitute the word: "expropriation" with the word: "deprivation", and to delete the words before the comma in subsection (3). At the end of subsection (2) the words: "provided that such expropriation shall be..." up to the end of the drafted subsection (3).

E. Entrenchment of the Constitutional State

Schedule 4, Constitutional Principle III is to be amended to insert after the word "government," the following words "The Constitution shall be rigid, fully justiciable and shall provide for a Constitutional Court". Schedule 4 Constitutional Principle XV is to be amended to insert after the word "majority" the words: to be no less than two thirds of all members of each of the legislative chambers".

F. Entrenchment of Provincial Autonomy

Schedule 4, Constitutional Principle XXI, item 7 is to be amended to delete the words "or desirable".

G. Mps' Freedom of Conscience

Sections 43 (b) and 51 (b) are to be deleted.

J. Recognition and Protection of Economic, Social and Cultural Pluralism

Article 98(2) is to be amended to add an additional subsection which reads: "(f) disputes between organs of the state at all levels of government and social, economic and cultural formations alleging an encroachment on, or an intrusion in their area of constitutional autonomy by an executive or legislative action of such organs which is not supported by a compelling reason of public interest and hedges on matters on which such formations may regulate in autonomy". Subsections (f) and (g) are to be renumbered accordingly.

Schedule 4, Constitutional Principle XX is to be amended to add the following words at the end thereof: "The Constitution shall recognize that all economic, social and cultural formations are entitled to an area of constitutional autonomy in all matters which they can regulate and administer by themselves, and any government may encroach on or intrude in such protected area of autonomy only for compelling reasons of public interest, subject to judicial review of the Constitutional Court."

K. Principle XVIII

Paragraph 2: Delete "substantially". Add the following proviso: "Provided that a provincial constitution adopted in terms of this constitution shall remain in force".

L. Principle XXXIV

Paragraph 1 to be substituted with the following paragraph: "The constitution shall make provision for the right of self-determination of any community sharing a common cultural and language heritage in a territorial entity within the Republic".

Paragraph 2: to be deleted.

7249

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(u) Public transport;

(v) Racing, casinos, gambling and wagering;

(w) Regional public media;

(x) Regional planning and development;

(y) Roads;

(z) Road traffic regulation;

(aa) Soil conservation;

(bb) Taxation, subject to the appropriate provisions of Chapter 9;

(cc) Tourism;

(dd) Trade and industrial promotion;

(ee) Traditional authorities;

(ff) Urban and rural development;

(gg) Water management;

(hh) Welfare services.

(3) An Act of Parliament may deal with a matter referred to in subsection (2) only to the extent that:

(a) It deals with an aspect of national interest of a functional area which cannot be dealt with effectively by provincial legislation;

(b) It deals with a matter that, to be performed effectively, requires to be regulated or coordinated by uniform or minimum norms or standards that apply generally throughout the Republic;

(c) It is necessary for the maintenance of economic unity, the promotion of inter-provincial commerce, the protection of the common market in respect of the mobility of goods, services, capital or labour, or the maintenance of national security; or

(d) The provincial law materially prejudices the economic, health or security interests of another province or the country as a whole.

Provided that the Act of Parliament passed in terms of this subsection shall not diminish the legislative competence of a provincial legislature, shall not encroach on the functional and administrative integrity of a province, and be reasonably calculated to meet compelling public needs

(4) The legislative and administrative competence referred to in subsections (1), (2) and (3) shall include the competence to make laws and take actions which are reasonably necessary for or incidental to the effective exercise of such legislative competence.

(5) An Act of Parliament shall prevail over a provincial law, as provided for in sub-section (3) only if it applies uniformly in all parts of the Republic.

(6) A provincial legislature may recommend to Parliament the passing of any law relating to any matter in respect of which such legislature is not competent to make laws or in respect of which an Act of Parliament prevails over a provincial law in terms of this section.

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(hh) National roads and railways;

(ii) National sport and recreation;

(jj) Patents, trademarks and designs;

(kk) Police, subject to the appropriate provisions of Chapter 14;

(ll) Postal service;

(mm) Postmortems

(nn) Private law;

(oo) Professional associations;

(pp) Promotion of scientific research and development;

(qq) Regulated substances and medicines;

(rr) Stock exchange;

(ss) Security of the State and the Constitution

(tt) Sports and recreation;

(uu) Taxation, subject to the appropriate provisions of Chapter 9;

(vv) Unemployment insurance;

(ww) University and technikon education;

(xx) Telecommunications;

(yy) Water law;

(zz) Weights, measures and standards.

(2) The Provincial Legislatures and Executives shall, subject to the provisions of subsection (3), have exclusive legislative and executive authority, unless and to the extent otherwise specified in this Constitution, in respect of the following functional areas:

(a) Abattoirs;

(b) Airports other than those contemplated in Item 1(c);

(c) Agriculture;

(d) Animal control and diseases;

(e) Cultural affairs;

(f) Education at all levels, excluding university and technikon education;

(g) Environment;

(h) Health services;

(i) Housing;

(j) Land use, including planning, zoning and development;

(k) Language policy and languages as languages of record for use in provincial administrations;

(l) Local government subject to the provisions of Chapter 10;

(m) Markets and pounds;

(n) Nature conservation, excluding national parks established by or under the National Parks Act, 1976 (Act No 57 of 1976) and national botanical gardens and marine resources;

(o) Police, subject to the appropriate provisions of Chapter 14;

(p) Provincial public property;

(q) Provincial public service, subject to the appropriate provisions of Chapter 13;

(r) Provincial residency;

(s) Provincial public works;

(t) Provincial sport and recreation;

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(7) In respect of all residual functional areas not dealt with in subsections 1) to 3) the National Legislature and Executive and the Provincial Legislatures and Executives shall have concurrent legislative and executive authority: Provided that -

(a) In matters affecting all or more than one province, which can only be effectively dealt with by Parliament, Parliament shall have overriding legislative authority; and

(b) In matters affecting only one province, which can be adequately dealt with by that province, that province shall have overriding legislative authority.

(8) Parliament shall have legislative competency in respect of a functional area referred to in Schedule 6 in the absence of or until the passing of provincial legislation dealing with such matter and to the extent that there is a compelling need for it to be dealt with.

(9) The National Legislature and Executive shall have concurrent legislative and executive authority in respect of all functional areas in respect of which a provincial legislature or executive elects not to exercise jurisdiction to the extent that and until such legislature or executive elects to exercise jurisdiction.

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ANNEXURE B:

PROVINCIAL FINANCE AND FISCAL AFFAIRS

ORIGINAL CLAUSE 121 NOW CLAUSES 155, 156, 157, 158 AND 159

Provinces' share of revenue collected nationally

155 (1) A province shall be entitled to an equitable share of revenue collected nationally to enable it to provide services and to exercise and perform its powers and functions.

(2) The equitable share of revenue referred to in section (1) shall consist of:

(a) a percentage, fixed by an Act of Parliament on the basis of a resolution of the Senate of income tax on individuals which is collected nationally;

(b) a percentage, fixed by Act of Parliament on the basis of a resolution of the Senate, of value added tax which is collected nationally; and

(c) that share of the fuel level which corresponds to the sale of fuel within the province;

(d) the transfer duty, collected nationally, on the acquisition/sale/transfer of ownership of property situated within its boundaries; and

(e) other earmarked or unconditional allocations of national revenue in terms of this section to the province.

(3) The percentages referred to in subsection 2(1) and (b) shall be fixed reasonably after taking into account the national interest and recommendations of the Financial and Fiscal Commission, and all payments to the provinces shall be transferred automatically without deduction.

(4) Allocations made in terms of subsection 2(e) shall be determined in accordance with an Act of Parliament, with due regard to the national interest and after taking into account -

(a) the provision that has to be made for interest and other payments in respect of the national debt; and

(b) the different fiscal capacities, fiscal performances, efficiency of utilisation of revenue, needs and economic disparities within and

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P.17

between provinces, as well as the developmental needs, administrative responsibilities and other legitimate interests of the provinces; and

(c) the recommendations of the Financial and Fiscal Commission.

## Levying of taxes by provinces

156 (1) Provinces shall have the original powers to impose duties, levies or taxes on -

(i) casinos;

(ii) gambling, wagering and lotteries; and

(iii) betting.

(2) (a) A provincial legislature shall have original powers to raise other taxes and surcharges after taking into account the recommendations of the Financial and Fiscal Commission - provided there shall be no discrimination against non-residents who are South African citizens; and

(b) Provincial legislatures shall be competent to enact legislation authorising the imposition of levies, duties and user charges in accordance with the recommendations of the Financial and Fiscal Commission - provided there shall be no discrimination against non-residents who are South African citizens.

(3) A provincial legislature shall not be entitled to raise taxes detrimentally affecting national policies, inter-provincial commerce, or the national mobility of goods, services, capital and labour.

## Raising of loans by provinces

157 (1) A province -

(a) shall subject to subsection (2) to raise loans for current expenditure; and

(b) shall be competent to raise loans for capital expenditure, provided it does so within the framework of reasonable norms and conditions prescribed by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relating to the content of any such Act in its draft form have been submitted to and considered by Parliament.

(2) Loans referred to in subsection (1)(a) may be raised for bridging finance during a fiscal year subject to such reasonable conditions as may be prescribed

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P.10

by Act of Parliament passed after recommendations of the Financial and Fiscal
Commission relating to the content of any such Act in its draft form have been
submitted to and considered by Parliament.

(3) A province may not guarantee a loan unless the Financial and Fiscal Commission has verified the need for a guarantee and recommended that it be given.

Revenue allocations by national government

158 Financial allocations made by national government in terms of subsection 155(2) -

(a) to a provincial or local government shall be made through an appropriation Act; and

(b) to a local government shall be made via the provincial government of the province in which the local government is situated.

Provincial Revenue Funds

159 (1) There is hereby established in the administration of each province a Provincial Revenue Fund into which shall be paid all revenue raised by or accruing to the provincial government, or revenues destined for local governments where the provincial government is the conduit as referred to in subsection 158(b).

(2) No money may be withdrawn from a Provincial Revenue Fund otherwise than by virtue of an appropriation made in accordance with a law of the provincial legislature concerned.

7259

3

MAR 31 '94 00:40PM SUC RELGATE

EXPLANATORY NOTE ON SECTION 126
CONCURRENT PROVINCIAL POWERS

Section 126 has been the core of constitutional negotiations. A large number of proposals, amendments and reformulations related to section 126 were submitted to the Technical Committee of the Multiparty Negotiation Process and during extensive bilateral and trilateral negotiations. Section 126 was also amended during the February 1994 session of Parliament. This background provides clarity and finality of its interpretation.

Subsection (2) states that, subject to the overrides set out in subsection (3) a provincial legislatures shall be competent to make laws with regard to matters listed in Schedule 6.

Subsection (2A) states that the national Parliament shall also have the power to make laws in the same subject matters in which provincial legislatures have jurisdiction. Therefore, provincial and national legislatures have concurrent full-extent legislative powers.

Subsection (3) states that if there is a conflict between national and provincial legislation, the national legislation shall prevail if it falls within the realm of 21 very broadly worded fields of public interest, the so-called overrides. A complete list of such overrides is attached hereto.

Section 144 states that the province has executive authority on matters on which it has legislative authority and to the extent that it has exercised such legislative authority. Section 75 states that the central government has executive authority in all matters in which it has legislative competence.

This constitutional framework is intentionally conducive to a situation in which in a province there are going to be national and provincial schools, national and provincial hospital, national and provincial housing programmes, and so on and so forth. Given the lack of fiscal autonomy of provinces and the power of the central government to make "conditional" transfers of revenues, (rather than merely "earmarked" as proposed by the IFP), provinces will exercise their functions only to the extent that their policies comply with those established at national level.

The fact that provinces have concurrent rather than exclusive powers reflects also on the process of rationalisation set out in section 235 et seqitur. For instance, the KwaZulu Government has and administers schools and hospitals. The issue arises about whether the present schools of the KwaZulu Government will become national or provincial schools. The relevant provisions for rationalisation are such that the central government could decide to make such schools national rather than provincial schools. Therefore, the provinces could be born with little assets and laws. The IFP position is that all assets and laws under the jurisdiction of the TBVC states, self-governing territories and old provinces which are related to the function of the new provinces must be automatically transferred to the new province.

The list of powers devolved to the provinces in Schedule 6 is insignificant. Most of such powers are municipal powers usually exercised by local governments. The list of such powers is less extensive than the list of "exclusive" powers recognised to regions in Italy and Spain, and the list of powers exercised by many counties in the United States. Provinces have no powers of comprehensive policy making at provincial level including economic provincial development or environmental management, for any comprehensive policy manoeuvre would need the concurrence of powers which are exclusively reserved to the central government.

For these reasons provinces would not be able to express political power and policy differentiation within the parameters of a federal or even a regional system of checks and balances.

Section 161 and 164 will force the reconsideration of provincial powers after elections, with the possibility that provincial autonomy be further qualified and constrained.

7311

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LIST OF OVER-RIDES

Under section 126 of the 1993 Constitution, as amended, the legislative and executive powers of national and provincial government are concurrent to the full extent of such powers. However, the legislative and executive powers of the central government shall prevail over those of the province when:

1. The Act of Parliament deals with a matter that can not be regulated effectively by provincial legislation.

2. An Act of Parliament deals with a matter that to be performed effectively requires to be regulated by uniform norms that apply generally throughout the Republic.

3. An Act of Parliament deals with a matter that to be performed effectively requires to be coordinated by uniform norms that apply generally throughout the Republic.

4. An Act of Parliament deals with a matter that to be performed effectively requires to be regulated by uniform standards that apply generally throughout the Republic.

5. An Act of Parliament deals with a matter that to be performed effectively requires to be coordinated by uniform standards that apply generally throughout the Republic.

6. The Act of Parliament is necessary to set minimum standards across the nation for the rendering of public services.

7. The Act of Parliament is necessary for the maintenance of economic unity.

8. The Act of Parliament is necessary for the protection of the environment.

9. The Act of Parliament is necessary for the promotion of inter-provincial commerce.

10. The Act of Parliament is necessary for the protection of the common market in respect of the mobility of goods.

11. The Act of Parliament is necessary for the protection of the common market in respect of the mobility of services.

12. The Act of Parliament is necessary for the protection of the common market in respect of the mobility of capital.

13. The Act of Parliament is necessary for the protection of the common market in respect of the mobility of labour.

14. The Act of Parliament is necessary for the maintenance of national security.

15. The provincial law materially prejudices the economic interest of another province.

16. The provincial law materially prejudices the economic interest of the country as a whole.

17. The provincial law materially prejudices the health interest of another province.

18. The provincial law materially prejudices the health interest of the country as a whole.

19. The provincial law materially prejudices the security interest of another province.

20. The provincial law materially prejudices the security interest of the country as a whole.

21. The provincial law impedes the implementation of national economic policies.

7315.1

MAR 31 '94 00:45PM GUC ROLGATE

EXPLANATORY NOTE ON SECTION 73
DEADLOCK-BREAKING MECHANISMS

Section 73 is perhaps the section in the constitution which has been discussed and negotiated the most. The many proposed amendments to this section, and its various reformulations during the process of negotiations, have clearly defined its meaning and purpose.

While section 62 contains the procedure required to amend the 1993 Constitution, section 73 contains the procedures to be followed by the Constitutional Assembly to adopt a new constitution. The Constitutional Assembly is under the obligation to adopt a new constitution within two years.

Subsection 3 sets out a procedure to approve a new constitution consisting of a two-thirds majority and special approval of two-thirds of the Senate for provincial matters. Subsection 2 procedure is acceptable.

Subsection 3 contains the so-called deadlock-breaking mechanisms. The following scenario, which was discussed at great length in negotiations, is consistent with the wording of subsection 3.

A 50+1% majority tables a fully drafted constitutional proposal at the opening of the Constitutional Assembly or immediately thereafter, moving for its approval. The text does not receive two-thirds majority support but only the support of the 50+1% majority.

This text will be transmitted to a panel of experts who are directly or indirectly appointed by the political parties [section 72 (2) and (3)]. This panel must decide unanimously within 30 days on any amendment to the text approved by the 50+1% majority, which means that if just one of the experts is aligned with the 50+1% majority, the panel will not be in a position to propose any amendment.

If there are no proposed amendments from the panel of experts the text can be approved again by the 50+1% majority. If there are amendments from the panel, the amendments are voted on. If the amendments do not receive the two-thirds majority and the special approval of the Senate under subsection (2), the 50+1% majority may approve its text without such amendments. Obviously, only the participation of the 50+1% majority may provide the majority required to amend the text previously approved by the same 50+1%.

Focally, but clearly, after the text approved by the 50+1% majority has gone through the panel of experts without amendments, or the panel's amendments have been rejected, *any* draft text before the Assembly may be adopted by 50+1% majority. This means that the 50+1% majority could very well follow this procedure up to this point on the basis of one given draft text and then could approve a second different draft text which would need not go through the panel of experts. Proposals to change the word "any" with the words "the same" were rejected.

The constitution approved by the 50+1% majority is going to be the only constitution to be submitted to referendum (requiring a 60% majority). Referenda may not rewrite a constitution but merely accept or reject it. There are negative consequences following the rejection by a referendum of an approved constitution: they include the dissolution of Parliament and prolonging constitutional negotiations which have engaged South Africa since 1990 with a great deal or correlated violence. These negative consequences will be a disincentive for the minority parties opposing the ratification of the constitution, and for the people who could otherwise vote against it.

Proposals aimed at ensuring that a 50+1% majority could not resort to the deadlock-breaking mechanism at the opening of the Constitutional Assembly, but should wait for two years, or any other given period, were rejected.

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EXECUTIVE SUMMARY ON THE
THE CONSTITUTIONAL VISION
OF THE INKATHA FREEDOM PARTY

* The IFP's constitutional vision is centred around the notions of federalism and pluralism.

* Only federalism can correct the risk in South African that a successful majority destroys the power bases of minorities, thereby forever preventing them becoming the majority of the future, as has happened in many other African countries.

* Federalism determines an institutional and workable form of power-sharing, allowing different political parties to be in power at the same time in different provinces and levels of government.

* Provinces must be the primary government of the people, and only those powers which can not be adequately or properly exercised at provincial level are to be devolved upward to the central government.

* Federalism allows for the self-determination of peoples in order to account for, and capitalise on social and cultural diversity.

* In addition to political pluralism, the IFP stands for social, cultural and economic pluralism, all of which are primarily to be protected through constitutional limitation on the role of governments, so as to determine an additional form of power-sharing between government and civil society.

* Social and cultural formations should receive constitutional recognition and protection, and should be allowed to resort to the judiciary when government encroaches on their area of constitutional autonomy without a compelling justification of public interest. This is to avoid that institutions of civil society, such as chambers of commerce, professional associations, arts and culture, research and universities, sports and recreations, trade unions, et cetera fall under the exclusive control of government.

* The constitution should contain an "economic constitution" which entrenches the free-market enterprise system and sets out enforceable limitations on the power to nationalise. As in former socialist countries, the constitution must mandate the privatisation of the huge South African parastatal.

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MAR 31 '94 09:49PM SUC FELGATE

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EXECUTIVE SUMMARY OF THE
CONSTITUTION OF THE STATE OF KWAZULU/NATAL

* Adopted by the KwaZulu Legislative Assembly on December 1, 1992, capitalising on a 20 year long process of racial harmonisation in the region centred around, *inter alia*, the Buthelczi Commission of 1980, the KwaZulu/Natal Indaba of 1986 and the interracial administrative of the region by the Joint Executive Authority.

* Erects the region of KwaZulu/Natal into statehood as a member state of a federation to be formed through negotiations at central level.

* Establishes a parliamentary form of government in the State with specific protection for political minorities in parliament, achieved, *inter alia*, by specific provisions in the electoral system.

* Establishes a social state which recognises constitutionally mandated social mission.

* Protects the full list of internationally recognised human rights, providing for special mechanisms to enforce them and foster a human rights culture. It recognises second and third generation human rights avoiding loopholes or claw back provisions.

* Accompanies the recognition of rights with social duties and obligations.

* Recognises an area of constitutional autonomy for social and cultural formations, thereby enshrining social and cultural pluralism. Social and cultural formations have the power to raise an issue of conflict with other powers of the state attempting to encroach on their area of constitutional autonomy, absent a compelling public interest.

* Limits the role of government, entrenches free market enterprise and economic pluralism, mandates privatisation and limits on nationalisation. Various independent commissions are provided for to ensure the control of civil society over relevant activities of government.

* Recognises an area of autonomy for traditional and customary law which, subject to the Constitution, is given the same status of the laws adopted by the state legislature. This system, along with the protection of the indigenous law tenure system (communal property) and indigenous law courts creates an area of autonomy which, *inter alia*, especially protects the role and functions of the Zulu Monarchy.

* The Constitutional Court is provided with almost all known tools to guarantee its independence and its capability to conduct effective constitutional adjudications.

7304.3

MAR 31 '94 00:51PM SUC FELGATE

EXECUTIVE SUMMARY
OF THE DRAFT CONSTITUTION OF THE
FEDERAL REPUBLIC OF SOUTH AFRICA

* Establishes a federal system primarily modelled after the United States of America, with residual powers left to the member states.

* It dovetails with the Constitution of the State of KwaZulu/Natal.

* It is a final constitution, and is amendable with standard reinforced amendment procedures.

* Establishes a parliamentary form of government with specific protection for political minorities in parliament, achieved, *inter alia*, by means of specific provisions in the electoral system.

* Establishes a social state which recognises constitutionally mandated social mission to be performed by the member states under federal guidance and incentives.

* Provides for a binding Bill of Rights applicable throughout the federation containing the full list of internationally recognised human rights and special mechanisms to enforce them and foster a human rights culture. It recognises second and third generation human rights avoiding loopholes or claw back provisions.

* Recognises an area of constitutional autonomy for social and cultural formations, thereby enshrining social and cultural pluralism. Social and cultural formations have the power to raise an issue of conflict with other powers of the federation or member states attempting to encroach on their area of constitutional autonomy, absent a compelling public interest.

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MAR 01 '94 09:50AM SUC FELGATE

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HIS MAJESTY KING ZWELITHINI GOODWILL KA BHEKUZULU,
KING OF THE ZULU NATION
CLAIMS THE SOVEREIGNTY OF THE ZULU KINGDOM

Extracts from the presentations of

February 14, 1994

Speaking to a crowded of over 120,000 Zulus gathered in Durban, South Africa, His Majesty King Zwelithini Goodwill ka Bhekuzulu, King of the Zulu Nation stated:

[...]

I today see the Honourable State President Mr FW de Klerk for the third time to press for his recognition that the sovereignty of KwaZulu has not been destroyed either through conquest and subjugation, or by the Zulu monarchy ever relinquishing the right to sovereign independence.

[...]

On claiming sovereignty for the Zulu Kingdom as it existed in 1834 I have rejected failed negotiations as something that yet could be revived to secure the interests of myself, as King of the Zulus, or the interests of the Zulu people [...].

[...]

I pledge myself never to allow Zulu sovereignty to be expressed in terms that in any way resemble Zulu domination over other races and cultural groups. [...] My claim to the sovereignty of the Zulu Kingdom is a modern, enlightened and progressive claim. I know that this claim has to be translated into an enlightened form of government, and into a public administration which gathers in them the very best that the modern world has distilled out of mankind, politics and constitutionalism.

[...]

The Zulu Kingdom of my vision is a Kingdom in which entrepreneurs will flock to the Kingdom because what they want to do for themselves will have benefits for the people which will guarantee them that which they need for themselves. My vision for the future of KwaZulu is one in which there will be the kind of freedoms in which the Church will really flourish, because men, women and children will be liberated from all forms of oppression and inequality.

[...]

Failed negotiations have shown me that the rest of South Africa has not taken to heart the seriousness of Zulu concerns. We are now asserting our right to a satisfactory answer to our concerns in our demand for a sovereign Kingdom. [...] The Zulu Kingdom must both be sovereign, whole and united in purpose in the pursuit of a common destiny for all those who would live in the Kingdom because they are ready to owe allegiance to it. [...]

Speaking on the same occasion Chief Minister Prince Mangosuthu G. Buthelezi stated: [...]

As our demands for federalism began failing, we strengthened our demands for self-determination for the Zulu people. We had always sought the accommodation of KwaZulu's interests in a fully secured state in a federal South Africa. That is what is in the best interests not only of KwaZulu, but which every Zulu man, woman and child, we think would want see.

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[...]

When however our strong calls for a federal future failed and His Majesty began withdrawing his support for constitutional and federal ideals annunciated by the Buthelezi Commission and the KwaZulu/Natal Indaba, which he had always supported, I could not say much in the light of the failures to secure His Majesty's position in a federation.

[...]

Now this pendulum has swung very far in the other direction as His Majesty calls for the return of the sovereignty of the Kingdom and its boundaries which the Zulu Kingdom enjoyed in 1834. I sincerely hope that call by His Majesty has sent shock waves of reality in the direction of the South African Government and the ANC. [...]

Speaking to the State President F.W. de Klerk, His Majesty stated:

[...]

The Zulu nation has always had in the monarchy its primary system of government. [...] even under the rule of South Africa, Zulus have had, and have, their own government which provides for their needs, wants and aspirations.

[...]

I would also fail in my responsibility as King of my people if, at this crucial stage, I declined to fulfil my duty to be decisive and determined in providing my people with an option which can secure their liberation not only as individuals but also as a people, and as a nation. The duty to reject the bondage of my people is incumbent upon me.

[...]

It is my duty to ensure the survival of the monarchy and of the Zulu Nation, by which I mean the unity of the past, present and future generations of Zulus living in Southern Africa.

[...]

The Zulu nation has never wished to opt out of South Africa as is proven by the stand that my Prime Minister, Prince Mangosuthu Buthelezi, took against so-called independence. We always felt that the Zulu nation belonged to South Africa, as much as South Africa belongs to the Zulu Nation. At the beginning of constitutional negotiations, we formulated our wish to remain a part of the brotherhood of nations of South Africa in a constitutional system which allows us sufficient space to breathe and exercise our right of self-determination.

[...]

We gave proof of our good intentions through the adoption of the Constitution of the State of KwaZulu/Natal. This Constitution was adopted by the Legislature of the KwaZulu Government in 1992 to erect the region of KwaZulu/Natal into statchood.

[...]

The Zulu nation retains its inalienable right of self-determination. [...] If the society expressed by the Zulu nation cannot co-exist with other societies in a united South Africa, then it becomes necessary and ineluctable that the society expressed by the Zulu Nation exists on its own, with its own territorial basis and with its own government.

[...]

Mr President, during our last meeting on February 1, I gave you formal notice that I, as the King of the Zulu nation, claim exclusive and independent sovereignty over our atavic territory as pcr 1834 boundaries.

[...]

As you know, the Zulu nation has always been a sovereign nation and its sovereignty has been expressed by its control of its territory. We were conquered and our sovereignty was limited and compressed, but it was not eliminated.

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P.27

[...]

Mr President, those who conquered us, namely the white nations of Afrikaners and British, are now relinquishing their sovereignty over the land of South Africa. In fact, we look at what is happening in South Africa and at the process of constitutional development not merely as a change of governments, but rather as a radical change of states.

[...]

The nation which was exercising sovereignty over the land, is abdicating its power to open the door for new nations to exercise their sovereignty over the land. Under this set of circumstances, I take the position that the sovereignty of the Zulu nation is revived, and I am advised that this position is also supported by the international law of decolonisation.

[...]

It is a matter of fact that we have not been defeated in war or conquered by those who are preparing themselves to exercise their sovereignty over the land. Therefore, we take the position that they have gained no right for themselves to rule over our nation, and their rule cannot force us to merge with all other nations of South Africa in a unified government.

[...]

A new constitution has been adopted for the Republic of South Africa which creates the framework for a unified power to be exercised over all the nations living in South Africa and over its entire territory. The KwaZulu Government has rejected that constitution. With the adoption of this constitution, and after the failure of negotiations aimed at amending it to change it into a federal constitution, a situation has emerged which brings back into existence the Kingdom of KwaZulu and its full sovereignty.

[...]

I am preparing myself to promulgate the Constitution of KwaZulu and Natal which will establish a monarchy modelled after the best examples of democratic and pluralistic monarchies in the world. It is within my powers as King and sovereign to issue and promulgate such a constitution to enshrine in KwaZulu/Natal a Kingdom and freedom, pluralism and prosperity for all its citizens for centuries to come.

[...]

The time has come for difficult and irretrievable decisions. The issue of the Kingdom of KwaZulu and of the freedom of the Zulu nation is on the table, and it is for you, Mr. President, to decide whether to choose once again the same path of liberation which inspired your epoch-making speech of February 2, 1990 or to allow our opponents to attempt to crush my Kingdom and the freedom and the liberation of my people by means of violence and destruction. [...]

7238.1

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EXTRACTS FROM THE
MEMORANDUM FOR PRESENTATION TO THE STATE
PRESIDENT, THE HON FW DE KLERK, DMS

BY HIS MAJESTY KING ZWELITHINI GOODWILL KA
BHEKUZULU, KING OF THE ZULUS

PRETORIA : FEBRUARY 23, 1994

[...]

I speak to you as Head of State about the Zulu Kingdom, and in doing so I take the whole matter out of the party political arena. We are not looking to establish a Kingdom. We are looking at something that already is, was, and shall be. I am not dependent on any multi-party approval for the recognition of the sovereignty of the Zulu Kingdom. I am simply claiming it.

[...]

Firstly, let there be clarity on what actually bounds the Zulu Kingdom. Those parts of what people call Natal, which are formally designated as KwaZulu areas, make nonsense of any notion of there being a Zulu Kingdom. We are not talking only about KwaZulu as it is known in current legislation.

I also want to dispel any notion that I and the Zulu people could ever be satisfied with a Zulu Kingdom comprising the area north of the Thukela. The Thukela River boundary, between what was the old Natal and the old Zululand, was established by colonialism and not by history. In fact I make the point, Mr President, that our great founding King, King Shaka ka Senzangakhona, lies buried south of the Thukela in the town of Stanger. Most of my subjects live in the area south of the Thukela River.

I do not have to substantiate my claim to any part of the Zulu Kingdom. The whole of Natal south of the Thukela, and every portion of Southern Natal, was most certainly part of the Kingdom of KwaZulu, and remains part of the Kingdom. From King Shaka's days onwards, the people of Southern Natal payed allegiance to Zulu Kings. Some of our brave warriors and some of our finest Zulu generals were drawn from Southern Natal. The big clans of the Zulu Nation, such as the Amaqadi Tribe, for instance, is situated on the borders of Durban. The Mkhize clans, which also paid allegiance to the Monarch, are all situated on the borders of Durban.

[...]

I want, Mr President, to make it very clear that I am not waiting until after elections to clarify the issues which are impeding the emergence now of a sovereign Zulu Kingdom. The only thing we can talk about, Mr President, is how the Zulu Kingdom will be relating to the new South Africa which will emerge from the politics of people elsewhere.

[...]

We should be negotiating about the optimal requirements which will make a democratic Zulu Kingdom a meaningful part of a wider Southern Africa in which both the Republic of South Africa and the Zulu Kingdom can mutually benefit from socio-economic and political development.

[...]

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I have said I recognise that there shall be democracy in the Zulu Kingdom, that there shall be government, and there shall be administrative structures that will help us garner the wealth that God located in this region for the benefit of the people. [...]

As a King I know that the purpose of the Monarchy is to be the custodian of the good of the Zulu Nation. [...] My duty is both to ensure the survival of the monarchy and to provide a form of government which will satisfy socio-economic and the political development of all the race groups living in KwaZulu.

KwaZulu was never racist and no Zulu king has ever been a racist. We are not looking at Zulu racist domination. We are only looking at the right of Zulu self-determination and the right to give expression to that self-determination to satisfy the requirements of the whole of the population of the Kingdom.

The Zulu nation has always felt that it belongs to the community of nations which form South Africa. [...] we need to negotiate about how the structures of the Kingdom should relate to the structures in South Africa, and how a government in the kingdom can relate to a government in South Africa.

This new constitution does not offer any space in which the Zulu nation could survive as a nation amongst other nations. [...] We are just not prepared to subject our destiny to the party political whims and power plays which will follow an election in April.

[...]

The fact is that there is no government or power which can legitimately do so (force us to participate in a single and a unified government established for all the nations of Southern Africa) for since 1992 the Zulu nation has indicated that it does not wish to participate in, or be ruled by the government of a unitary state, but shall only be ruled by its own government for its own people.

I make a sombre statement, Mr President, that my father's people will resist the election which you and political South Africa are attempting to force on us.

It will be folly in the extreme to think that the election tank, and the constitutional tank of the World Trade Centre and the South African Parliament can roll over and flatten opposition to constitutional developments now taking place.

I conclude, Mr President, with the same words that I used to conclude my last memorandum to you. "Time has come for difficult and irretrievable decisions".

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

2

MAR 31 '94 10:04PM SUC TELGATE

REPORT TO THE ZULU NATION

BY HIS MAJESTY KING ZWELITHINI GOODWILL KA BHEKUZULU
THE KING OF THE ZULU NATION

ULUNDI : FRIDAY, MARCH 18, 1994

I, King Zwelithini Goodwill ka Bhekuzulu, once again come among you, my father's people, and the people of the Zulu Nation, to face together the difficulties and the responsibilities of the present stage of history. History is calling on us to finalise the liberation of our people from over a century of foreign domination. We have reached the point of no return at which we are faced with enormous responsibilities towards history and the future generations of all Zulus who will follow us in the centuries to come. I come amongst you once again to report to my father's people and to the Zulu Nation on negotiations with the South African Government for the establishment of a sovereign Kingdom of KwaZulu.

Since the beginning of the process of the democratic transformation of South Africa, the KwaZulu Government, led by my Prime Minister, the Prince of KwaPhindangene, has claimed the right of the Zulu people to determine their own destiny. The KwaZulu Government called for the self-determination of the Zulu Nation within the parameters of a strong federal system and on the basis of a territory including the great majority of the original territory of the Kingdom of KwaZulu.

In the final stage of negotiations it appears clear that the Zulu Nation was denied the right to seek its self-determination within the parameters of a strong federal system. Therefore it became my duty as the King of the Zulu Nation, and as the personified representative of all the past, present and future generations of Zulus, to take a decisive step to ensure that our Nation will survive as a Nation in the centuries to come.

The duty of preserving our national identity falls primarily on me as the King of the Zulus, but it also falls on each and every member of the Zulu Nation. For this reason, on several occasions I have brought together my father's people and the Zulu Nation so that we can share in the unity of our Zuluhood the burden and the privilege of shaping our future.

Strong in the support and the mandate of my father's people and of the Zulu Nation, I went to see the State President on January 17, 1994 to demand the freedom of the Zulu Nation and the restoration of the Kingdom of KwaZulu. During this meeting with the State President, I made it unequivocally clear that our demand for independence and sovereignty could not be accommodated within the rigid parameters of the 1993 Constitution produced at the World Trade Centre.

This Constitution establishes a unitary State which gives no recognition of the right of the Zulu people to govern themselves. This Constitution makes no recognition for the role of the Zulu Monarchy. This Constitution does not establish a system in which the Zulu people can have a government as their own primary government which recognises our self-determination with other people of this Region. In a strong federal system as we originally envisioned, the primary government of the Zulu people, and all other population groups of this Region, would have been our government. For this reason, once it was clear that the Interim Constitution of South Africa was going to have the characteristics of a unitary state, we took the position that we could have nothing to do with the drafting of such a constitution which does not meet the needs of our Nation.

What was produced at the World Trade Centre is something that we had nothing to do with. The Zulu Nation can not, and shall not, identify itself with such a Constitution to which we recognise no legitimacy or validity.

Against this background, I went to the State President on the 1st of February 1994 demanding that the South African Government recognise the right of the Zulu Nation to establish its own government through the restoration of the Zulu Monarchy. Through me, the State President heard the demands of the Zulu Nation and

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the demands of my father's people. The State President assured me that he would personally react with specific proposals to my appeal to him.

Rather than through the action of the State President, I received an answer to the issues raised during my first meeting with him from the work of a bilateral working group. My delegation which participated in this working group which included two members of the Zulu Royal House, Prince Gideon and Prince Vincent, reported to me on January 30. They indicated to me that all that the South African Government was willing to concede to our demands for freedom, independence and sovereignty, was a set of constitutional amendments and possibly a document of mutual recognition between myself and the State President, which would be signed by both of us as a kind of Agreement.

This proposal from the South African Government would have achieved nothing to ensure that the Zulu Nation is governed by a sovereign government of this Region, and that the Kingdom of KwaZulu is restored. I want to stress to you, my people, and I want to put on the record of history, that following the many other meetings which I have had with the State President, on January 17th, on February 1st, on February 14th and February 22nd, and others between our respective delegations, no substantial improvement was made on the nature and contents of this original proposal.

On January 30th, I rejected these proposals from the working group which I felt were a result of a misunderstanding on the side of the State President on the true extent and purposes of the claim of the Zulu Nation. I met with the State President again on February 1st, in Pretoria and during this meeting I reiterated the demands of the Zulu Nation with absolute clarity. I indicated then that our claim for sovereignty could not be accommodated within the parameters of the 1993 Constitution, however amended, and that ways and means had to be found to restore the Kingdom of KwaZulu as a sovereign entity.

At the end of the meeting, the State President promised that he would work on our demands, and he would revert to me as soon as possible. Unfortunately the State President could not arrange a follow-up meeting with me until February 14th and this meeting took place in Durban. At that meeting I indicated to the State President that his proposal to find accommodation of our claim and demands within the 1993 Constitution was not a viable one because however he put it, no real political power for sovereignty could be granted to the Zulu Nation and to the Kingdom of KwaZulu within the type of solutions he had in mind.

The State President stressed the need to find what he called a constitutional way to provide some sort of recognition to the Kingdom of KwaZulu. With this approach he meant to express the notion that the Kingdom of KwaZulu, the sovereignty of the Zulu Nation and our right to self-determination, should be subject to the 1993 Constitution of the Republic of South Africa and to the power of the national and provincial legislatures.

I made it absolutely clear to the State President that this entire approach was not acceptable because the sovereignty of the Zulu Nation is inalienable and can not be left to the mercy of any legislature or any constitution. During my address to the State President on that occasion, I indicated that the sovereignty of the Zulu Nation exists as a historical reality which is not in my power to give away. I also clarified to the State President, and to the world at large, that the sovereign Kingdom of KwaZulu would be a democratic and pluralistic one, modelled after the great examples of constitutional monarchies of the world such as the United Kingdom, Spain, Belgium or Japan.

In that context, I announced that it is within my right and prerogative to adopt and promulgate a constitution for the internal organisation of the Kingdom which would ensure that the rights of all people living in the Kingdom are preserved and protected, irrespective of race. I did so also to assure the State President that his concerns related to the protection of Whites, Coloureds and Indians living in the Kingdom are ill-founded and totally groundless. We Zulus have gone further than any other nation in the recognition of the rights and the freedoms of all people irrespective of race, colour and religious beliefs. This has clearly been shown by over 20 years of racial harmonisation in our region, marked by historical events such as the Buthelezi Commission, the KwaZulu-Natal Indaba and the adoption of the Constitution of the State of KwaZulu-Natal.

A further meeting with the State President took place on February 22nd, in Pretoria. At that meeting I re-stated once again that the only task our respective delegations had to focus on, was to determine ways and means to bring about the peaceful and negotiated restoration of the Kingdom of KwaZulu. I also urged that attention should be given to the position of the Kingdom of KwaZulu in the rest of Southern Africa, so that the Kingdom

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of KwaZulu could enjoy a mutually profitable status with all other nations and countries of the sub-continent. I indicated that specific attention had to be given to possible economic, fiscal and financial agreements to ensure the economic continuity between the Kingdom of KwaZulu and the other countries of Southern Africa.

To me that was all the work that our delegation had to carry out. I understood that for that purpose alone our respective delegations were to meet in Somerset West, Cape Town, on February 23rd and 24th. I was extremely, and I need to say quite negatively, surprised when I understood that the only thing the South African Government was willing to discuss with my delegation was the refinement of the proposal which they previously submitted to me, and which I had rejected on January 30th. Neither myself nor my lawyers could see any substantial difference between what emerged from the Somerset West meeting and what was previously presented to me by the South African Government.

[...]

For this reason I am here once again amongst you my father's people and the Zulu Nation. We have reached the end of a road and we are faced with the harsh reality that the South African Government can not and will not facilitate the restoration of the sovereign Kingdom of KwaZulu. We are faced with the historical dilemma of either succumbing and forever relinquishing our inalienable right and sovereignty, or to take it upon ourselves to realise and bring into existence what is ours, what belonged to our fathers and what belongs to our children.

We need to realise that in facing this enormous historical task, we are alone and we can rely on nothing and on nobody but our strength and determination. It appears clear that neither the South African Government, nor other organisations, will facilitate our historical task.

[...]

The Zulu Nation is now left with the responsibility of finding the strength and the resources to bring about the restoration of our Kingdom and to achieve our national self-determination in a free and independent country. A process of this magnitude and historical importance can not be master-planned. It is important that I, the King of the Zulus, and all the Zulu people, begin to promote and defend the restoration of the Kingdom of KwaZulu. Our action will dictate the unfolding of future historical events. We must have faith in our final victory and in the success of the liberation of our people. We shall resist any attempt to constrain the forces of our liberation. I have requested President de Klerk to sort out this issue of our sovereignty and the future of the Kingdom of KwaZulu, before the election.

The rejection of the federal formula by the Multi-Party Negotiation Council at Kempton Park, as a framework within which we could exercise our self-determination made the sorting out of these issues extremely urgent in the light of the imminent date of the election. This I made very clear to the State President. At the meeting we had with Mr de Klerk on the 22nd of February, he virtually rejected the idea of doing anything himself about my concerns about the Monarchy and the Kingdom of KwaZulu. He instead made it clear that if my people took a stand against participation in the forthcoming election on the 27th of April because he had failed to do something about the issue of the Monarchy and the Kingdom of KwaZulu, he would send security forces into KwaZulu-Natal Region.

The State President quoted as a precedent that the South African Government was opposed by many people, including the UDF, during the elections for the Tricameral Parliament and that the Government deployed security forces and the election took place. He stated that if my people did not participate in the 27th April election, he would do the same. Yesterday you heard him speaking in Johannesburg of a volatile situation here and of what he calls "contingency plans" that he has made. These contingency plans of President de Klerk refer to the deployment of security forces to clamp down on my people should they choose not to participate in the election i protest for the betrayals that the Zulu Nation has suffered from President de Klerk again and again.

The holding of elections under the 1993 Constitution in terms of a unified South Africa, is an immediate dental of our claim for sovereignty and self-determination. In this regard, there can be no compromise or flexibility and I have the duty as the King of the Zulus to express this message in clear and unequivocal terms. In the circumstances, I find it quite impossible to recommend that any of my subjects who are loyal to the throne should participate in the forthcoming election, unless this matter is settled.

I call on you, my father's people and the Zulu Nation, to bring to reality the realisation of our dream. The call for our freedom can no longer be delayed. Freedom is never granted, sovereignty is never granted. Either it

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exists and is recognised, or it does not exist. We the Zulu Nation convene today on the battleground which subjugated the freedom of our forefathers.

We here today proclaim before the world our freedom and sovereignty and our unwavering will to defend it all costs.

I, King Zwelithini Goodwill ka Bhekuzulu, fulfil today my historical role and responsibility to declare my commitment to the freedom and sovereignty of the Zulu Nation, and to assert the sovereignty of my father's people over their ancestral territory.

I call on all Zulus to unite in the name of the Kingdom of KwaZulu. I call on all Zulus to fulfil their sacred duty to defend our freedom and sovereignty to anyone in Southern Africa who will dare to challenge it. The road ahead is not going to be an easy one, but I know that you, my father's people and the Zulu Nation, will meet with courage, determination and pride the challenge that history has put on all of us. God Bless all our efforts for the restoration of our Kingdom.

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