Once the conditions for free political activity are achieved, and thereby a climate conducive to genuine negotiations, the way will be clear for discussions on basic constitutional principles and, crucially, on the constitution-making process.
In the absence of an external party to play a role similar to that of the United Nations in Namibia, defining and establishing the mechanisms of transition is of critical importance.
By early 1991 there were signs that wide differences between the Government and the ANC on these issues could narrow. The government appeared to be shifting from its initial unqualified opposition to an elected constituent assembly and an interim government to oversee the period of election and constitution-making.
The statement at the end of the Pretoria Minute, in August, that 'the way was now open to proceed towards negotiations' proved premature. The government's delays in implementing the Pretoria agreements in an attempt to force an end to mass mobilisation postponed the removal of obstacles to a negotiating climate.
In the week immediately after the signing of the Pretoria Minute, a start was made in an initial round of exploratory talks on matters related to the negotiations process. However, in December the ANC said that a second round was yet to begin. Invitations issued by the government to organisations other than the ANC were rejected, except by those which were already participating in government structures.
Although there were no talks, the government publicly articulated the principles which it would be seeking to have implemented in a new constitution. These have remained vague in crucial respects, and have moved since 1989 from an outright protection of the interests of 'groups' unmistakably defined in apartheid terms to the protection of 'minority' interests defined in terms of language, culture or religion. The government principles remain, however, opposed in important respects to those espoused by the ANC and contained in its Constitutional Guidelines of 1989.
The political systems suggested by government representatives have been complexly structured to preserve existing interests and severely limit the power of an elected majority to bring about socioeconomic change. The most detailed proposals, published in a discussion paper in November, involve a two-chamber parliament, one house elected by universal non-racial suffrage and the second consisting of representatives of 'groups' and regions. The ten proposed regions would be autonomous in ways that would limit central authority.
Devolution of authority would be taken further in proposals for local government which appeared to have government support. These would involve the introduction of neighbourhood committees as a new level of authority, below that of the municipality. They would have powers to decide 'norms' governing the occupation of residential areas, the use of amenities and admission to schools. If introduced, such a system could provide for the defence of white interests at the local level.
By February this year six months had passed since the government first signalled, immediately after the signing of the Pretoria Minute, its intention to link further progress in talks to the ending of mass mobilisation.
The resultant delays in the implementation of agreements threatened the negotiations procedure.
The procedures for granting indemnity were announced some weeks late, and applied only to those who had left the country illegally. Although a fifth to a quarter of known political prisoners had come out of prison since 2 February 1990, there were still possibly 2,000 in prison. There was no evidence of any action to implement promises to review the application of security legislation with a view to promoting free political activity and to amend the Internal Security Act. The government had taken no effective action to bring to an end the violence of the police and other armed groups.
Political trials were continuing even if most resulted in acquittals or withdrawal of charges. Detention without trial was still being used and about 60 people were being held under the Internal Security Act. The moratorium on execution had expired, and while the law on capital punishment had been amended it still allowed for the execution of political prisoners, of whom over 50 remained on Death Row.
The ANC consultative conference in December had decided that the movement's participation in talks should be reviewed if the obstacles were not removed by the target date of 30 April agreed in the Pretoria Minute. In its annual 8 January statement, the ANC'S NEC proposed the convening of an all party congress to discuss constitutional principles and negotiating procedures, without which no progress could be made. It insisted, however, that such a congress could not be convened until all the obstacles had been removed.
The ANC proposed that the congress would set out the broad principles within which detailed constitutional work would be carried out; determine the nature of the body, such as a constituent assembly, which would draw up the constitution; and establish an interim government to oversee the process of transition until a government was formed on the basis of the new constitution.
Throughout 1990 government spokesmen consistently rejected the call for an interim government and an elected constituent assembly. They argued that the present government was that of a sovereign independent state and should exercise power until a new government was formed on the basis of a new constitution. They argued also that a new constitution should be negotiated, in De Klerk's words, by 'the representatives of all political parties which have proven support' — this was taken to include parties elected under the present apartheid constitution.
Although De Klerk reaffirmed this position in his speech to parliament on 1 February this year, he added that 'consideration may be given to certain transitional arrangements on the various legislative and executive levels to give the leaders of the negotiating parties a voice in the formulation of important policy decisions'.
Subsequent reports suggested that this referred to proposals for the restructuring of government hinted at since October 1990 which, while not amounting to a genuine interim government and elected constituent assembly, could mark the beginning of a move in that direction.
The change would involve the creation of a 'Council of State' (also referred to in some reports as a 'supercabinet') which would leave the existing cabinet as an administrative structure without decision-making powers. Those ministers involved in negotiations would leave the cabinet and become members of the Council of State, as would leading figures from other negotiating parties. Proposals for such a council date back to a policy decision taken by the National Party Federal Congress in 1986, as one of the initial steps towards recognising the necessity of negotiations.
