The apartheid regime has taken its first concrete steps towards a negotiated end to apartheid, but without irreversibly committing itself to that path. It has retained — and has continued to use — an armed repressive capacity inconsistent with a climate conducive to negotiations. For its part the ANC welcomed the developments as positive and important, but called on the regime to take the remaining steps needed to clear the way for negotiations.
The speech by F W De Klerk at the opening of parliament in early February and subsequent statements by government ministers initiated steps which, although widely expected, came sooner than most observers had predicted. By the beginning of March the unbanning of political organisations and the unconditional release of Nelson Mandela, along with other moves, had opened a new phase in the struggle to end apartheid. It had, however, also become clear how far the regime still had to go in order to create a climate for negotiations to end apartheid. It was also evident that the regime remained committed to constitutional principles and positions regarding the process of negotiations which are fundamentally different from what is envisaged in the Organisation of African Unity's Harare Declaration.
HARARE DECLARATION
Based on the ANC's guidelines for a genuinely negotiated end to apartheid, and adopted by the Non-Aligned Movement and the United Nations General Assembly, the Harare Declaration identifies five steps which the apartheid regime needs to take to create the political conditions in which negotiations could take place. In effect the regime needs to undo the repressive measures which it adopted in its attempts to crush resistance.
The steps implemented since President De Klerk's speech on 2 February represent only a partial move in the direction required.
Release all political prisoners and detainees unconditionally and refrain from imposing any restrictions on them
As well as Nelson Mandela, a number of other political prisoners were released during February and more were due to be released. However, only a small proportion of those imprisoned as a result of their participation in political protest were due to be freed unilaterally. No mention was made of those held in detention without trial.
In his February speech, President De Klerk, having announced the intention to unban various organisations, said that the authorities would identify and release people who were in prison 'merely because they were members of these organisations' or because they were convicted of doing something which was only illegal because of a prohibition on one of those organisations.
On the other hand, 'prisoners sentenced for other offences such as murder, terrorism or arson', he said, 'would not be affected by this'. However the Minister of Law and Order subsequently indicated that an amnesty for political prisoners 'convicted of common law crimes' could be negotiated, and President De Klerk said that Mandela, before his release, had raised the position of people 'involved in politically motivated crimes', both those in prison and those now in exile. De Klerk said that he had told Mandela it was a matter to be 'dealt with in negotiations', but that 'exploratory talks could take place in the meantime'.
Press reports after the President's announcement said officials of the Department of Justice said that 77 prisoners would be released. It was not clear, however, that this was the number who met the criteria stated, or whether they were to be released for other reasons. A significant number of political prisoners have been released early during the past two years.
Within a fortnight of De Klerk's announcement the release of at least 27 prisoners had been reported. They included people who had been convicted of terrorism and 13 held in the Ciskei and Transkei bantustans. Most had served the larger part of their sentences, one of them having only five days left of a four-year sentence.
The prisoners being released as a result of the measures announced on 2 February are only a fraction of South Africa's political prisoners. At least 750 prisoners, identified in the press and in reports of monitoring groups, were listed in a report issued by IDAF in February, while monitoring groups have estimated that the total number of political prisoners could be as high as three thousand.
On 26 February over 300 political prisoners on Robben Island began a hunger strike to demand the immediate and unconditional release of all political prisoners and detainees. In a statement issued to the press through lawyers they rejected 'De Klerk's categorization of political prisoners' and said that 'all politically motivated offenders are political prisoners'.
Lift all bans and restrictions on all proscribed and restricted organisations and persons
All prohibitions on organisations under the Internal Security Act (dating in some cases back to the 1950s) were lifted in a Government Gazette of 3 February, as were all emergency regulations imposing restrictions on 34 named organisations. Bans on a number of newspapers or periodicals under the Internal Security Act, imposed between 1952 and 1977, were also lifted.
De Klerk's announcement of the unbanning of organisations was accompanied by the lifting of restrictions on 374 individuals. However, the State of Emergency, which has been in force since 1986, remained in operation. The government's justification for maintaining the emergency was that it was necessary to control the actions of the mass organisations. This was more directly spelt out by the Minister of Law and Order in parliament on 8 February, when he said that those against whom the State of Emergency was directed were 'responsible for [it] still being in operation'.
De Klerk made no suggestion that the Public Safety Act itself would be abolished. It is this act, introduced in response to the Defiance Campaign of the 1950s, which gives the government power to declare an emergency and create emergency regulations. All the emergency restrictions which have been lifted since the beginning of February could be reintroduced if the political conditions allowed the regime to do so.
No mention was made by President De Klerk of any intention to abolish the Internal Security Act which confers the power to impose specific restrictions, such as bans, on organisations, individuals and publications, as well as other extensive repressive powers. The continuing existence of this and other legislation designed to restrict political activity, diminished the effects of the lifting of formal prohibitions on organisations. In ways that have already been illustrated, the repressive laws give wide discretion to the police to use force in order to restrict freedom of association and expression. In particular a ban on all outdoor gatherings held without official permission — other than sport or religious gatherings — has been used to prevent meetings or demonstrations, either by magistrates refusing permission or by police using the prohibition to disrupt meetings.
Defiance of the ban on outdoor meetings, and of the requirement to seek permission for meetings and demonstrations, has obliged the government to review certain provisions in the Internal Security Act and the Riotous Assemblies Act in order to avoid confrontation. The Minister of Law and Order announced in parliament that consideration was being given to amending these acts so that it would no longer be necessary to seek permission to hold meetings, marches or demonstrations.
Presumably the ban on outdoor gatherings, imposed annually under the Internal Security Act since 1976, could also be allowed to lapse when it expires at the end of March. However, even with such modifications, the provisions of the act would still give the police wide discretion to disrupt and prevent meetings.
Indefinite detention without trial, powers to censor publications, to prohibit or forcibly disperse meetings, and to imprisonment opponents under a range of widely-worded clauses all remain on the statute book in the form of the Internal Security Act. Although the Minister of Justice said on 7 February that the government 'does not have an inflexible attitude' to the retention of 'security legislation', its first responses to the current situation have been to propose amendments to such legislation, rather than to consider repealing it.
It is not only the central government which holds such repressive powers, but also its 'independent' bantustans authorities. These powers were actively used in all these bantustans during February. In the Transkei, police and soldiers arrested 600 people during protests after police fired on a celebrating crowd. In Venda, Ciskei and Bophuthatswana there were arrests, detentions and police action against people mobilising against the authorities and calling on the bantustans to renounce their 'independent' status. The Ciskei bantustan authorities declared a State of Emergency on 2 February.
Cease all political trials and all political executions
A moratorium on all executions, whether or not they arise out of political circumstances, was announced by De Klerk. During this period changes in the law which provide for capital punishment will be discussed and introduced.
De Klerk made clear that what was intended was a change in the law relating to capital punishment, and not its abolition. Amongst the changes envisaged is a limitation in the application of the death penalty through judges being given wider discretion than is now the case: currently the death sentence is mandatory after conviction for murder, except in the limited number of cases where 'extenuating circumstances' are recognised by the court. There will also be an automatic right of appeal. A statement in parliament on 7 February by the Minister of Justice suggested that there is also likely to be a provision for regional courts to hear murder cases, though without the authority to impose death sentences. The Supreme Court would continue to hear cases in which the death penalty might be imposed.
Pending the changes the courts will continue to apply the law as it currently stands, and will impose the death sentence in the same way as before. However, the position of all those currently on Death Row and anyone sentenced to death during the moratorium, will be reviewed according to the new criteria when they are established.
Executions were suspended in the Transkei bantustan in October 1989, pending a review of the use of capital punishment in the area, and in February the dropping of some cases involving 'politically motivated crimes' and a three-month postponement of others was announced. However no move has been made to end the use of political trials or capital punishment in the other 'independent' bantustans, namely Ciskei, Venda and Bophuthatswana.
Although the introduction of the changes announced by De Klerk may eventually lead to a reduction in the number of people who face the possibility of the death sentence, the moratorium on executions will not by itself have this consequence, and it may not prevent the execution of some of those currently on Death Row.
Other political trials have been only marginally affected by the changes introduced at the beginning of February. According to the Human Rights Commission there were 300 political trials in progress during February, although past experience suggests that this may well be an underestimate. Charges arising merely out of the prohibitions on organisations, which have now been lifted, are generally not being pressed by the courts. There have been reports of charges being withdrawn and cases abandoned but these form only a very small minority of cases, just as the released prisoners are a very small minority of the total population of political prisoners. Where defendants have also been charged with other offences, the trials have proceeded even though the charges of belonging to a banned organisation have been dropped. One magistrate spoke of a 'cloud of uncertainty' hanging over the position of the ANC.
Not only have existing cases continued, but new ones have started since 2 February.
FURTHER STEPS
The analysis above shows the extent of the repressive power which the apartheid regime has retained even while taking some substantial steps towards the creation of a climate for negotiations. Having retained such extensive legal powers of repression, the regime is in a position, should circumstances allow it, to reintroduce most of the political restrictions it has lifted.
Further steps are likely in the foreseeable future, but the government has made clear that it does not intend unilaterally to take the remaining actions expected of it in the Harare Declaration. It has included these steps in what it terms 'remaining obstacles to negotiations' and indicated that it intends to treat them as matters for negotiation, or at least for 'exploratory' talks rather than unilateral action.
In particular it has indicated that the release of political prisoners, the end of the State of Emergency, the question of the Internal Security Act, and the amnesty required for the safe return of exiles are to be treated in this way, and that it expects the ANC in particular to take various reciprocal steps, such as ending its armed struggle.
ANC RESPONSE
The unbanning of organisations and later the release of Nelson Mandela were received throughout the country with expressions of joy as communities demonstrated spontaneously and people participated in large meetings and rallies.
Where the police did not interfere the meetings were disciplined and orderly, generally under the control of ANC stewards. However, as noted above, a number of meetings and demonstrations were attacked by the police, particularly in smaller towns.
In the speeches and press conferences which Nelson Mandela gave after his release he emphasised certain themes. He affirmed his position as an ANC member, adhering to ANC policy and subject to the collective leadership of the movement. He explained that the conditions which gave rise to the armed struggle and to the organisation's call for international sanctions had not changed, and that therefore both would continue along with the movement's other forms of struggle. At the same time he emphasised that he looked forward to the time when conditions no longer required armed struggle and sanctions.
Mandela issued strong calls for unity among all democratic forces in the fight to end apartheid. He also focussed on the anxieties of whites in South Africa, indicating that the movement understood the fears and was concerned to address them. 'We . . . need to convince them,' he said in a speech at Soweto, 'that a South Africa without apartheid is a better home for all.'
On 2 February the ANC's president Oliver Tambo and other ANC leaders visiting Sweden issued a statement welcoming the lifting of the ban on the ANC and other positive measures announced by De Klerk, but expressing concern at the failure to take other necessary steps. They said that the organisation would 'take urgent measures to review the situation that had emerged, to determine the steps we have to take to move our country further towards finally ending the apartheid system.' Two weeks later, after the release of Nelson Mandela the National Executive Committee (NEC) held an extended meeting and issued a statement recognising the unbanning of the ANC and the other measures as important factors. However, it went on to say that the NEC had 'concluded that the Pretoria regime has not yet created a climate conducive to negotiations'. It called on the regime to release all the prisoners and detainees, end the State of Emergency, repeal repressive legislation, halt political trials and remove troops from the townships. In order to help bring about these measures and clear the way for negotiations, the NEC had decided to send a delegation, composed of ANC leaders from inside and outside the country, to meet De Klerk 'as soon as possible to discuss with him the need to address these issues so that a climate conducive to negotiations is created'.
The NEC considered suggestions that it should unilaterally suspend the armed struggle, but decided that the position contained in the Harare Declaration ought to be adhered to. This envisages a negotiated mutual suspension of hostilities once the climate conducive to negotiations has been created. It also noted the need for the international community to maintain sanctions until the ending of the apartheid system. The NEC statement reaffirmed the need for the continuation of mass political action on the lines formulated in the Conference for a Democratic Future in December last year. This conference, attended by over 4,600 delegates from organisations supported by an estimated 15 million people, drew up a comprehensive campaign strategy of mass action around issues like education, housing costs, living conditions and the rights of organised labour.
The NEC statement concluded by reaffirming that 'our country's problems can only be solved when South Africa has been transformed into a non-racial democracy in which the fundamental rights of all our people, both black and white, would be guaranteed.' In doing so it was articulating a perspective which is fundamentally different from that which appeared to be present in De Klerk's speech to parliament and was later elaborated by Gerrit Viljoen, the Minister of Constitutional Development. By telling bantustan leaders and urban councillors that their 'place in the negotiating process is assured' and by his emphasis on 'minority rights', De Klerk indicated that the regime had not broken with the basic ideas of apartheid. Speaking in parliament on 5 February, Viljoen emphasised the 'justifiable need and demand of minorities, in particular the whites, for constitutional protection against domination'. In a press interview the next day he explained that although the National Party supported universal franchise, this did not mean a common voters' roll for all groups.
