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Political Sciences

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Mediation during the Transition in South Africa

Paper presented to the 2nd Pan-European Conference on International Relations, European Consortium on Political Research, Paris, 13-16 September 1995

Dirk Kotzé
Department of Political Sciences
University of South Africa, Pretoria

1 INTRODUCTION

Violence is often a symptom of change. Depending on the incumbent regime, it can also be used as a justification against change. During the transition in South Africa, which started in 1989/90 violence has been endemic and hence the challenge was how to manage conflict in such a manner that it is conducive for the transition. Hence mediation at different levels and by a multitude of agents was imperative for the success of democratisation.

The South African issue has been internationalised especially as a result of the fact that apartheid was declared a crime against humanity and South Africa's involvement in civil wars in Angola and Mozambique in addition to the destabilisation of Southern Africa. Hence mediation also involved an international dimension.

The purpose of this paper is to give an overview of some of those mediation efforts and how they have impacted on the transition process.

2 VIOLENCE IN SOUTH AFRICA

Violence in South Africa assumed a multitude of manifestations and accordingly it would be incorrect to ascribe all of it to political causes. The level of violence is therefore not an accurate barometer of political stability in South Africa. The main causes of violence are the following:

(1) structural violence and its responses: the system of apartheid included policies such as forced removals, controlled urbanisation by means of pass laws, decimation of political opposition and cultural engineering. Political opposition has been systematically eroded by death squads (Laurence 1990), and Third Force activities by the police and military, i.e. "a sinister and secret organisation or group that commits acts of violence in furtherance of some nefarious aim" (Goldstone 1992: 4). Presently a former commander of the Vlakplaas police unit is on trail for such activities. The response to structural violence has been an armed struggle since 1961 by Umkhonto we Sizwe (MK) of the ANC, the Azanian People's Liberation Army (Apla) of the PAC and the Azanian Liberation Army (Azanla) of the exiled BCMA. Another manifestation was the 1976 Soweto revolt against Afrikaans as a means of tuition in African schools. It spilled over into the uprisings in the 1980s, organised by the United Democratic Front (UDF) and civic associations, against the new black local authorities. It was presented in the form of an insurrection (people's war) to make the country ungovernable. The regime's response was a State of Emergency from 1985 to 1989, coordinated by the State Security Council.

(2) ethnic violence: due to the misappropriation of ethnicity by apartheid, currently it is unfortunately not politically correct, or seen as conservative, to focus on ethnicity as a cause of violence. However, its relevance cannot be denied. It assumes many manifestations, such as "faction figths" at mines, or as fights between hostel-dwellers in townships like Sebokeng (mainly between Zulu and Xhosa) and as revenge attacks between clans and other groups.

(3) ideological/political competition: the contestation for political terrain and support is most visible in KwaZulu/Natal, but has been prevalent also on the East Rand. In the early 1980s open warfare between the Witdoeke (supported by the police) and the Comrades of the UDF at Crossroads in the Western Cape introduce community conflict based on ideological differences. In the Natal Midlands similar conflict between Inkatha and the UDF also erupted (Minnaar 1992: 7-9). In 1990 it assumed a new character. According to the Goldstone Commission (1992: 6) the unexpected and sudden legalising of the ANC, SACP adn PAC has contributed to the violence. "This must be seen against a background of a lawful and Government-supported Inkatha Freedom Party having been at war with a largely underground African National Congress and its front organizations. With rapid change the Government, again suddenly and unexpectedly, resolved to negotiate in public and in private with organizations that were perceived, for good reason and bad, as the enemy of Inkatha, of White South Africans and, most important, of the police and army".

(4) crime: socio-economic problems such as unemployment have a direct impact on the level of violence. Moreover, it is extremely difficult to distinguish between political and criminal violence, because its often perpetrated in the name of politics. Hence the problems regarding identifying those who should qualify for indemnity on the basis of political offences. Political conflict is also exploited by criminals, such as the weapon smuggling syndicates operating between Mozambique and South Africa since the peace agreement to end the 20 year old civil war.

(5) interest-oriented conflict: the best examples of such conflict are the taxi wars and train killings. Intense competition for taxi routes between taxi associations, which are sometimes also aligned to certain political organisations, often result in shootings. In the early 1990s train killings, especially between Johannesburg and Soweto, reached endemic proportions but since have abated. One interpretation of the killings was that they would discourage commuters in using trains and instead would benefit the taxi industry. Third Force activities were also linked to them in order to delay the constitutional negotiating process.

3 NORMALISATION OF THE CONFLICT SITUATION

International pressure and a realisation by the incumbent government that the level of violence could not be managened by security means, meant that a political solution had to be found. Van Zyl Slabbert (1992: 57-61) refers to it as a necessary normalisation phase in any negotiating process during which the parties in the conflict must reach a consensus that the only manner in which the conflict can be resolved is through peaceful negotiations. Secondly, this phase involves a consensus regarding the manner in which political conflict should be managed in the immediate future.

The realisation that a negotiated settlement is the only viable solution can be traced to 1985 when clandestine meetings were held between Nelson Mandela in prison and the Minister of Justice, Kobie Coetzee. These meetings were conducted up to Mandela's release in 1990. At the same time the non-aligned Institute for a Democratic Alternative for South Africa (Idasa), directed by Van Zyl Slabbert and Alex Boraine, arranged contacts between the ANC in exile and South Africans from inside the country. Most notable was the meeting in Dakar, Senegal.

Another initiative for normalisation with an international dimension, was the series of meetings between 1987 and 1990 between Afrikaners and the ANC in Europe. The head of communications and corporate affairs at Consolidated Goldfields, a British mining house, Michael Young met with Oliver Tambo, then President of the ANC. He asked Tambo what British business could do that would address more than just the symptoms of apartheid. Tambo wanted a meeting with Afrikaners. Young thereafter approached Consgold's chairperson, Rudolph Agnew, who agreed to fund the meetings. Twelve meetings were held between 1987 and 1990 at Mells Park House in England (Sparks 1994: 77-82).

After the unbanning of the ANC and SACP in 1990, bilateral talks with the NP government almost immediately started. The first obstacle to overcome was to agree on temporary indemnity for the ANC delegates who were in exile. In May 1990 the first public bilateral was held in Cape Town and concluded by the Groote Schuur Minute. Both parties committed themselves to a peaceful, negotatiated settlement as well as mechanisms for the release of political prisoners. The talks were conducted without any mediation or facilitation, even though the NP initially refused that Joe Slovo, a prominent SACP leader, could be included in the ANC delegation.

In August 1990 a second bilateral was held in Pretoria and resulted in the Pretoria Minute. Most significant of this agreement was the ANC's unilateral suspension of its armed struggle waged by MK, though not its final termination. It was followed in early 1993 by the DF Malan Accord signed at the Cape Town international airport. That agreement prescribed the details of the suspension of MK's activities, while in the months that followed it caused many differences of interpretation. Most significant, however, is the fact that the armed struggle has effectively being terminated. However, this decision was highly unpopular amongst the ANC youth and as a result self-defence units (SDUs) emerged in townships such as Thokoza and Vosloorus. The SDUs were in constant battle especially with IFP supporters in the hostels. Accordingly, violence had been addressed at the leadership level but not at grassroots level. Moreover, a tendency of increasing violence since 1990 emerged, which superficially was contrary to the anticipated consequences of an impending political settlement.

4 THE NATIONAL PEACE ACCORD

It has become abundantly clear that the ANC and NP were heading for a stalemate regarding the violence, because the NP regime was accused of tolerating a Third Force, supporting the IFP and not being committed to combatting violence. The ANC, on the other hand, was accused of being unable to control its members and of political intolerance. Hence a mediating agent was imperative.

The National Peace Accord was signed by 26 political movements and parties on 14 September 1991. Only the PAC and conservative white groups did not participate. The Accord was facilitated by mainly business and religious leaders such as archbishop Desmond Tutu and Bobby Godsell of Anglo-American Corporation. Business leaders coordinated by the Consultative Business Movement, all the significant political groups, except the right wing, church leaders and trade unionists met for the first time on 22 June 1991 to address the violence. Five working groups were established, each dealing with a specific aspect of violence. The groups were made up of representatives from the ANC, NP and IFP as well as one religious and one business representative. The two non-political representatives convened the groups and provided the infrastructure and administrative support for their activities. Those mediators played a most significant role in bringing the parties together to sign the Accord. The fact that the political groupings have requested them to stay on in the peace process, bears witness to this fact (Eloff 1991: 20).

The main objectives of the Accord were to deal effectively with the causes and phenomenon of political violence and intimidation, as well as to facilitate socio-economic reconstruction and development. From an institutional point of view, at the national level the National Peace Committee (NPC), the National Peace Secretariat (NPS) and the Commission of inquiry regarding the prevention of public violence and intimidation (the Goldstone Commission) were established. Eleven regional dispute resolution committees were formed, that were responsible for creating local dispute resolution committees. In 1994 263 local peace committees were in operation.

The main characteristic of the peace structures is their multi-party composition and non-partisan leadership. The chairperson of the NPC has been John Hall, a business leader, and the chairperson of the NPS has been a Pretoria lawyer, Antonie Gildenhuys (NPS 1994: 1-3).

The Goldstone Commission led by Judge Richard Goldstone, who has since been appointed as chief prosecutor of Bosnian war criminals at the International Court of Justice, was mainly responsible for reporting and making substantial recommendations relating to the curbing of violence. The Commission has held the view that "one of its most important functions is to act as a catalyst in the process of transforming the Police Force into a body that has the confidence, respect and co-operation of the vast majority of the people of South Africa. The committee established to inquire into the policing of mass demonstrations was conceived as the point of entry" (Goldstone 1992: 2-3).

The Commission has also employed the services of international experts in policing, notably from the Commonwealth. One such example was the investigation by Dr PAJ Waddington of the University of Reading in England, into the police response to, and investigation of the Boipatong massacre on 17 June 1992. This massacre caused a temporary breakdown of four months in the constititutional negotiations.

One example of the success of a local peace committee is the Mpumulanga peace accord. Mpumulanga was one of the most violence areas in KwaZulu/Natal, engulfed in a civil war between the ANC and IFP. Again a business person, the human resources manager of SA Spinners, acted as mediator in the negotiations for an accord. The success of the mediation is based on the fact that practical achievements can be shown in the form of socio-economic reconstruction, like the restoration of schools (ICJ 1992: 15-16).

The National Peace Secretariat, as the driving force of the peace structures, played a significant role in mediating conflict. It appointed two full-time mediators/facilitators, Paul Lusaka and John van Breda. Dr Lusaka, a Zambian national, has an illustrious diplomatic career, inter alia as President of the UN's General Assembly and Security Council, and as a cabinet minister. He had been seconded to the NPS from the Commonwealth Secretariat. The two mediators resolved numerous taxi disputes, political conflict situations and were responsible for training sessions in conflict resolution skills and community conflict management to inter alia the taxi industry, civic organisations, hostel communities and traffic police. The NPS also adopted a conflict resolution procedure. It made provision for a bottom-up manner dispute resolution. Disputes of a political, commercial/industrial and local government nature required the attention and intervention of the NPS and could not be resolved at the local level (NPS 1994: 39-40).

The peace structures also received assistance from international observers.

5 INTERNATIONAL OBSERVERS

NPS members met once a week with the heads of missions of the four observer missions to South Africa, namely the United Nations (UNOMSA), the Commonwealth (COMSA), the European Union (ECOMSA) and the Organisation of African Unity (OAUOMSA) to discuss issues of mutual concern.

The catalyst for sending international observers to South Africa was the Boipatong massacre. On 17 August 1992 the UN Security Council passed Resolution 772 that authorised the Secretary General to deploy UN observers in South Africa in support of the peace structures. The OAU, Commonwealth and EU would also be invited to send observers.

The main function of the international observers was to accompany members or observers of local communities. Though their official mandate was limited, they have managed to hold sometimes faltering peace committees together, to initiate the re-establishment of peace committees that have broken down and to provide leadership by example in communities where it was lacking. Almost all local peace committees' meetings were attended by observers, and often they mediated to resolve issues ranging from taxi disputes to political massacres.

The observer missions were initially small in size (UN 50, OAU 15, EU 19, Commonwealth 12) but by the time of the April 1994 general elections they have been increased substantially. Hence their task was extended to include election monitoring (NPS 1994: 13, 63-66). Together with the internal Independent Electoral Commission, it was their task in the end to determine whether the elections were free and fair.

6 INTERNATIONAL MEDIATION

At the initial stage of the negotiating process in 1991 the PAC proposed international facilitation in order to reducing the advantageous position of the NP as government and introduce a non-partisan officiating agency. However, Codesa and the Multiparty Negotiating Process decided against international involvement - international actors acted only as observers.

The IFP, on the other hand, has introduced a new perspective on international involvement. Since March 1994 it has propagated international mediation as a means of bridging its differences with the ANC in the constitutional negotiating process in particular. It raises the first question: is mediation the most appropriate means to resolve the issue?

Mediation "is a form of third-party intervention into disputes, directed at assisting parties to find their own mutually acceptable settlements" (Anstey 1991: 249; Anstey 1993: 1). The objective of mediation is not only to reach a settlement, but could also be to seek sufficient movement for allowing negotiations to continue without further third-party assistance, or to remove specific obstacles to negotiating, or to reduce tension in the relationship, or to assist parties to define the issues at stake more clearly (Anstey 1993: 2). In summary, it is clear that mediation is aimed at resolving a dispute. However, the exact role of a mediator is still debated. The two dominant views are, firstly, that the parties are mature negotiators who are capable of making their own decisions as to what constitutes an appropriate or just result, and therefore a mediator should not impose it on them. Hence, the mediator's task is not to create a temporary and articificial balance between power imbalances. The second view is that the primary purpose of mediation is to balance the power between the parties to insure a "fair" agreement (Boskey 1994: 367-370). It will be seen in subsequent discussions that the IFP has ostensibly the latter view in mind.

International mediation is normally aimed at resolving a dispute regarding interpretations of an agreement or a particular document, regarding mutually exclusive positions in a negotiating process, or to remove a deadlock in negotiations or resolve a walk-out by one of the parties, or to resolve physical conflict. In the past few years the best examples of international mediation were Jimmy Carter's involvement in North Korea and Bosnia, the Norwegian foreign ministry's mediation in the Northern Ireland issue, Lord Owen and Lord Carrington in Bosnia, and the role of South Africa, Botswana and Zimbabwe in resolving the crisis in Lesotho. Accordingly, typical issues for mediation in the South African context could be: how must the concurrent powers of provinces (schedule 6 in the constitution) be interpreted?, or to reconcile the differences of opinion regarding allocation of powers from the national to the provincial authorities since the establishment of the new provinces.

6.1 Origin of the call for mediation

At the end of 1993 the IFP submitted a Yellow Paper containing amendments to the interim constitution, which the NP tabled in Parliament. However, the ANC succeeded in delaying the process before the interim constitution was enacted. The first two months of 1994 saw negotiations between the ANC, NP and Freedom Alliance during which the NP withdrew its support for the Yellow Paper amendments. It reached a deadlock when on 21 February 1994 the NP and ANC supported amendments to the interim constitution without the IFP's concurrence.

During March and April 1994 the IFP and ANC were engaged in intensive negotiations regarding possible international mediation to remove the deadlock and to secure the IFP's participation in the April 1994 general elections. On 10 April 1994 the IFP, ANC and also the NP agreed on an agenda (the Consolidated Terms of Reference) for international mediation. Seven international mediators, including Henry Kissinger and Lord Carrington, were identified. However, after their arrival the two chief negotiators, Cyril Ramaphosa of the ANC and Roelf Meyer of the NP, objected to the "purpose" of the mediation in particular. The ANC proposed two conditions for the mediation to commence, namely that the IFP must commit itself to accepting that no amendment of the interim constitution will be tabled before the election and that the outcome of international mediation would constitute a recommendation to the Constitutional Assembly. Secondly, the IFP must endorse and recognise the interim constitution and election date (26-27 April 1994). The IFP rejected both and thus the mediation failed to materialise.

One of the mediators, Prof Washington Okumu of Kenya, remained behind and brokered an agreement between the ANC, IFP and NP on 19 April 1994. The main elements of the Agreement for Reconciliation and Peace were:  

  • the IFP agreed to participate in the general election
  • the parties agreed to recognise and protect the institution of the Zulu king and the Kingdom of KwaZulu, for which purpose the interim constitution would be amended before the election
  • "any outstanding issues in respect of the King of the Zulus and the 1993 Constitution as amended will be addressed by way of international mediation" (Agreement 1994: 1-2).

Accordingly the IFP recognised the interim constitution and committed itself to the election process and election date.

In January 1995 the Constitutional Committee of the Constitutional Assembly (CA) agreed that international mediation should be discussed in the context of the constitution-making process. It resolved that the issue ought to be dealt with by the leaders of the three signatories. Cabinet established the "3M (Roelf Meyer [NP], Mohammed Valli Moosa [ANC] and Sipho Mzimela [IFP]) Committee" to investigate the implementation of the Agreement. They reached a deadlock, because the NP and ANC did not consider the Consolidated Terms of Reference still binding on all the parties, in addition to the ANC's opinion that the Zulu kingdom did no longer form part of the terms of reference. Consequently, President Mandela delegated the issue to Deputy President Thabo Mbeki for facilitation.

On 6 March 1995 a special IFP General Conference resolved that the party could no longer participate in the CA and should suspend its involvement. However, the walk out would only be effected a month thereafter if international mediation has not yet commenced. Since the end of March 1995 the IFP is no longer participating in the CA, while no progress has been made regarding international mediation (IFP 1995a: 1; IFP 1995b: 2; IFP 1995c: 3-7; The Star, 21 March 1995: 10; Buthelezi 1994a: 1-3).

6.2 The issues at stake

An evaluation of international mediation should not only focus on mediation itself but rather on the root issues which it reflects. The questions that it raises are:

(1)  how should the final constitution be negotiated; what is the most appropriate mechanism?
(2)  is constitution-making a sui generis process that requires a special form of decision-making
     other than a special majority?
(3) is international mediation the most appropriate mechanism to be applied under present 
     circumstances?
(4) is the Agreement for Reconciliation and Peace still binding on the signatories?
(5) what are the matters to be mediated; is the Consolidated Terms of Reference an appropriate
     agenda for mediation?

6.3 Constitution-making mechanisms

Arguably at the heart of the differences regarding international mediation is divergent perspectives with regard to its purpose. Implicit in the IFP's argument is a two-pronged motivation.

Firstly, it views it as a substitute for the CA negotiating process. For instance, in a submission to the 3M Committee it said (IFP 1995b: 6):

 The IFP always opposed the notion of a Constitutional Assembly charged with the task of drafting a constitution for the country by virtue of majority rule. There are fundamental issues, such as those of federalism and pluralism, which cannot be decided by majority rule, no matter how large is the majority concerned.

In the same submission it was also made clear that "international mediation, and not the Constitutional Assembly, would offer the path to settle the issue of the form of state" (IFP 1995b: 2). Another variation of this opinion is that the purpose of international mediation, in the IFP's opinion, is to provide inputs in the constitution-making process after the April 1994 elections. On the other hand, though the IFP rejects the legitimacy of the CA as the constitution-maker, it argues that the CA is responsible for determining the role of international mediation in the constitution-making process (IFP 1995a: 2).

The IFP's approach is ostensibly a continuation of its approach during the multiparty negotiations at Kempton Park. It was highly successful as de facto leader of the Freedom Alliance to establish a second, parallel negotiating process outside the Negotiating Council which enhanced its bargaining position vis-a-vis the ANC and NP and delivered tangible results. The main difference in the two situations, however, is that the CA is much more institutionalised than the Negotiating Council, with a statutory status and popular legitimacy based on the outcome of a general election. Accordingly, much less space has been left outside the CA for a second, parallel negotiating process. The demise of the extra-parliamentary Conservative Party (compared to the parliamentary Freedom Front) is largely indicative of it.

Implicit in the IFP's approach is a acknowledgement that, based on the principle of electoral support, it is too small and geographically concentrated for effective, roundtable bargaining. Hence, a two-sided negotiating table, with the IFP on the one side, is most preferable, but given the fact that it is highly unlikely to change the CA's round table, it could only be achieved under special conditions, such as international mediation.

Immediately it raises the issue of the relationship between the CA and other extra-systemic negotiations. Where will the final locus of decision-making be? International mediation could only be morally defensible if all seven political parties in the CA are involved, which in the end might be detrimental to the IFP. Suppose most of the other six parties take their places opposite the IFP, it would mean its effective marginalisation in the sense that it would be the IFP against a multiparty caucus.

The second IFP motivation for mediation is ostensibly to entrench its powerbase in KwaZulu/Natal. The results of the 1994 general elections, albeit not very accurate, have confirmed that apart from areas on the East Rand and in the Eastern Transvaal, the IFP is a regional party confined to KwaZulu/Natal. Hence, it is logical to entrench its position there in the form of demanding more powers for the provinces. It has gone so far as to propose an a-symmetrical federal state in favour of the province of KwaZulu/Natal. Because in its view it won't be able to secure it by means of the negotiating process in the CA, the alternative is international mediation. The Agreement has created the loophole that by invoking Constitutional Principle 18(2) it will secure more provincial powers in the final constitution without bargaining for them in the CA.

In contrast to the IFP, the ANC maintains a limited interpretation of international mediation. Thabo Mbeki is of the opinion that mediation refers to a dispute, and hence outstanding issues should be identified which are in dispute. He denies that any such issues have been identified (Mbeki 1995: 3). The IFP rejected such an interpretation (IFP 1995b: 1):

International mediation does not depend on the development of a deadlock in the negotiation process in the Constitutional Assembly, and is not a tool to solve a deadlock. In fact, the Agreement for Peace and Reconciliation ... requires that international mediation is to commence even before the constitution-making process in the Constitutional Assembly was properly structured.

Thus the call for international mediation symbolises a lack of consensus regarding the mechanism for constitution-making. Moreover, the Agreement that enables international mediation is confined to the interim constitution and Zulu kingdom, while the IFP's main target is the CA, which is responsible for the final constitution.

6.4 Decision-making in the negotiating process

A question of universal relevance is: what must be the majority needed in writing a constitution - a simple majority, a two-thirds majority or general consensus? Related to this question is: is constitution-making such an unique process that it cannot be governed by the normal, democratic, political rules of the game?

At Kempton Park the principle of sufficient consensus was used, but the IFP challenged its application in court. In contrast, the CA must take decisions by a two-thirds majority, but if an impasse is reached after three years of negotiations, the new constitution can be adopted by a simple majority, in addition to a two thirds majority in a national referendum. In either scenario, the Constitutional Court remains responsible for certifying the constitution's compliance with the Constitutional Principles.

The IFP opposes the CA, because of the majoritarian principle. "Simply put, the IFP rejected the notion of an election to empower a Constitutional Assembly charged with the task of writing a new constitution by virtue of majority rule, claiming that some fundamental issues related to pluralism and federalism cannot be decided by majority rule" (IFP 1995b: 1). In view of the fact that sufficient consensus as well as a two-thirds majority is unacceptable for the IFP, it is clear that no form of roundtable, multiparty negotiations would be acceptable for it, because potentially it could be overruled by the others. Hence, a two-sided mediation process is the only option.

The IFP has succeeded in creating the impression that its insistence on international mediation is for the sake of federalism and pluralism. However, the majority of parties in the CA (the NP, Democratic Party, Freedom Front and African Christian Democratic Party) also propagate it, while only the ANC and PAC are not overtly federalist. The ANC and PAC together cannot muster a two-thirds majority in the CA, which means that federalist parties will also have to concur with the final constitution. That has given them effective bargaining power in the CA, irrespective of extreme small electoral support.

Another consideration is the fact that in South Africa only political parties are responsible for the constitution-making and all other social formations have been excluded since the start of talks in Codesa. It introduces implicitly into the negotiating process a set of rules associated with parties. Parties' power is mostly determined by an electoral process which invokes the democratic principle of majoritarianism - normally a simple majority, but for constitutional amendments they often require a special majority. Other principles could have been used if political parties were not to be the primary actors in the process, like the American founding fathers.

The dilemma of all constitution-making processes directed by political parties (which is the dominant approach the last few decades) is that parties have a temporary existence and their electoral support may change over time. How will it affect a constitution that is supposed to last for generations but which reflects the sentiments of particular parties at a specific point in time? Not even a general consensus among all the parties would alleviate this dilemma. Two options are available, though both are undesirable. The first is to assume that the constitution will have to be amended quite often and therefore not to create a too rigid constitution. Secondly, it could be a lean constitution (like the American one) without much details and confined to general principles, excluding aspects such as the restitution and restructuring of inter alia the economy, affirmative action, land issues and gender.

6.5  The most appropriate mechanism

If, hypothetically, the Agreement of 19 April 1994 is temporarily set aside, an important question is: which mechanism will be most appropriate in order to address the current differences of opinion and the IFP's objectives? The main issues raised by the Consolidated Terms of Reference are exclusive, original powers for the provinces (even on an a-symmetrical basis), including the right to taxation and of writing their own constitutions without any review, and secondly the Zulu monarchy and Kingdom of KwaZulu. They involve Constitutional Principles 18(2) regarding provincial powers, 34 regarding the right to self-determination and 13(2) regarding the constitutional position of the Zulu king. The IFP reduces them to two concepts: federalism and pluralism.

Extension of provincial powers to include exclusive powers, which by means of Principle 18(2) will form part of the final constitution, does not involve a dispute regarding the interpretation of the present list of concurrent powers. The IFP rather argues for an extension of the list (in other words, new issues are introduced), which is a typical agenda of a negotiating process and not mediation. The present situation has not been preceded by negotiations that are deadlocked or in dispute. Hence, the situation is suitable for facilitation but not mediation. In the Consolidated Terms of Reference it had been implied in the sense that the mediators were not meant to be adjudicators (i.e. arbitrators) "but rather an agency dedicated to the facilitation of an agreement between the parties" (IFP & ANC 1994: 1). Facilitation entails less pro-active involvement in the process, and is primarily aimed at establishing a neutral officiating agency who is responsible for directing the negotiating process. Mediators, on the other hand, have normally access to all the caucuses of the parties involved and try to convince them of the merits of an opposing view or of accepting a compromise formulated by the mediator. The psychological impact of the relative bargaining powers of the parties normally has less of an effect on mediators than on the parties, and hence the IFP's reluctance to engage in negotiations, even if they were to be facilitated.

The second major issue is the Zulu king and kingdom. The issue is linked by the IFP to the first one in the following way (Buthelezi 1994b: 1):

The issues relating to the Monarchy and the restoration and the securing of the Kingdom of KwaZulu are of particular importance to reconcile our differences about the national constitutional framework necessary to enable the Province of KwaZulu/Natal to adopt a constitution restoring and securing the Kingdom of KwaZulu.

The background to the issue is the refusal for the Zulu monarch to attending the plenaries of Codesa I and II in 1991 and 1992 respectively and Buthelezi's believe that the monarch was an important instrument to bolster and consolidate the IFP constituency. With the impending demise of the KwaZulu homeland during the transition period, the pretence of Zulu autonomy or self-rule would be removed. Hence, its continuation was vested in the restoration of the Zulu monarchy and kingdom in terms of the 1834 boundaries, as an autonomous and sovereign kingdom. Between January and April 1994 serious negotiations were conducted between delegations of the king and NP government. It culminated in a deadlock at the Skukuza summit (IFP 1995b: 4).

It had been agreed on 19 April 1994 that both the monarchy and kingdom will be entrenched in the Constitutional Principles (which was done subsequently) and be effected in the provincial constitution of KwaZulu/Natal. If any mediation regarding this issue needs to take place, it should involve the provincial legislature of KwaZulu/Natal in which the IFP is in the majority. Thus, mediation would imply that it is in dispute with itself. However, the monarchy will be indirectly affected by an extension of the powers of the provinces, which has already been discussed as matters to be negotiated. Insofar as provincial powers are not involved, mediation at the national level regarding the Zulu monarchy seems to be inappropriate.

6.6  The binding nature of the Agreement

Given section 4 of the Agreement for Reconciliation and Peace the ANC and NP are morally obliged to participate in international mediation. However, in view of the inappropriate nature of mediation under present circumstances for successfully addressing the issues raised by the IFP, plus the vagueness of "any outstanding issues", the Agreement was a serious error of judgement. For example, the status of the Consolidated Terms of Reference is nowhere clarified. Presumably the Agreement was motivated by an overriding concern that the IFP should join the election process in 1994. However, if the conventional interpretation of law is applied, it could possibly be argued that due to its vagueness, that part of the Agreement cannot be enforced. But it does not reduce the moral obligation of the ANC and NP to honour their commitment or come to a mutual agreement with the IFP about an alternative.

In addition to the first problem, the fact that the ANC and IFP have divergent interpretations of the purpose of mediation (dispute resolution versus negotiations) and that it is not defined in the Agreement, also hinders its implementation.

Finally, it is clear that the Agreement refers only to outstanding matters regarding the interim constitution and Zulu monarchy. However, it is clear that the IFP's intention is to extend coverage of mediation as wide as possible with the view that the outcome need to be incorporated in the final constitution. Accordingly, the dispute regarding interpretation of the Agreement is a classic case for mediation : mediation-about-mediation.

6.7  The Consolidated Terms of Reference

Though the ANC and NP do not reject the principle of international mediation, their main objection is that it is unclear what the disputed issues are. The IFP's response has been that they are bound by the Consolidated Terms of Reference, which are synonymous with "any outstanding issues". The problem is that the Agreement for Reconciliation and Peace does not refer to them explicitly and therefore it remains a matter open for interpretation.

The terms of reference referred to five topics. First is the constitutional status of the provinces, including their powers, their fiscal and financial autonomy and their power to determine their own provincial constitutions. The second topic relates to the constitution-making process: the Constitutional Court's role of review and certifying the constitutions' compliance with the Constitutional Principles, plus the procedure for constitutional amendments. The third topic is more practical in nature: the process of rationalisation and empowerment of the new provincial administrations. The final two topics referred to citizenship and the qualifications of voters, and the Zulu monarchy and Kingdom (IFP & ANC 1994: 1-2).

A pertinent question not yet asked or answered regarding the Consolidated Terms of Reference is: does the fact that Prof. Okumu have mediated an agreement between the conclusion of the Consolidated Terms of Reference and the election, which resulted in constitutional amendments, alter the binding and relevant nature of the Consolidated Terms of Reference? For example, the position of the Zulu monarchy, except for possible broadening of his powers as a result of the extension of provincial powers, has been finalised. The extension of powers could be dealt with under the provincial powers. Except for the third topic, which is suitable for mediation, all the topics related to constitutional negotiations and hence are not really applicable for mediation. Accordingly, deciding on new terms of reference about issues in dispute, is the only viable alternative.

7 THE ROLE OF VIOLENCE

Since approximately 1983 KwaZulu/Natal has been the focus point of political violence, first between the IFP and United Democratic Front (UDF) and since 1990 between the IFP and the ANC. It has also spilled over to the East Rand. Immediately before the 1994 general elections violence reached an apex, but in the first eight months thereafter has declined sharply. A recurrent increase emerged in the beginning of 1995. The tendency of 1994 is apparently being repeated in 1995.

Several factors could have influenced it, amongst others the preparations for the local government elections on 1 November 1995, which revives the battles of 1994 for territory and support. It overlaps with the Constitutional Assembly's timetable for finalising the draft text of the final constitution in October/November 1995. Seen together with the IFP's ostensible inability to enforce the Agreement for Peace and Reconciliation that has to be implemented before the draft text is finalised, an intensification of political tension is unavoidable.

Added to those issues are the IFP's insistence that the investigation into the massacre at the ANC's Shell House headquarters in 1994 must be finalised, and President Mandela's personal incrimination in the matter, as well as the public "humiliation" of Mangosuthu Buthelezi. Finally the national government's attempt to alienate the amakhosi (traditional leaders) from the IFP in the sense that the ANC has implemented legislation with the effect that the provincial Houses of Traditional Leaders will receive their remuneration from national government, and not from the provincial governments, is another aggrevating factor.

Samuel P. Huntington (1968: 41, 45) formulated a hypothesis that it is not the absence of modernity but the efforts to achieve it, that produce political disorder and violence. According to him, the degree of instability is related to the rate of modernisation. Democratisation and institutionalisation (including constitution-making in the South African context) are forms of development. Hence, the implication of Huntington's view is that the political violence in South Africa could be a symptom of the transitional process, which is implicitly a positive indicator of development.

Such a view is primarily based on Seymour Martin Lipset's crises of legitimacy of the status quo in periods of radical change, but does not consider violence as a possible strategic means in a negotiating process. Though it is not argued that the IFP uses a masterplan designed by its leadership which involves political violence, the party is the common denominator in most incidences of violence and therefore associated with it. What contribution can it make in its negotiating stance? Threat of violence is known as an effective deterrent against political marginalisation. The IFP's capacity for the use of violence is generally known and therefore threats in the form of brinkmanship in order to secure concessions in the negotiating process would constitute an alternative for electoral power.

Accordingly, it is predictable that after the local government elections the level of violence could decrease substantially, similar to the tendency after April 1994, and after the May 1996 deadline for the final constitution most of the present determining factors of the violence would be removed. The question remains whether brinkmanship will again result in a compromise before the situation becomes untenable.

8 CONCLUSION

The most significant characteristics of the mediating process in South Africa is that the international community has played a supportive role, but not a crucial part in the transition in South Africa. Its role was mainly a legitimising role during the elections. However, it made a major impact on the transformation of the police force, especially by the Commonwealth. Overall, mediation by internal agents has been more significant.

Internal mediation was performed mainly by business persons and church leaders. The peace structures also fulfilled a most significant role in the mediation of conflict.

International mediation is not a popular concept in South Africa. Even the ANC, with its close association with the international community and anti-apartheid movements during its time of exile, has not been in favour of international involvement in the negotiating process. Apart from the sentiment of intervention in domestic affairs, and protection of a "national pride", international involvement would to a degree also result in losing control over the transition. Currently the issue of international mediation has been politicised in the sense that it is closely associated with the IFP, and hence opposed by the ANC, irrespective of its inherent merit.

Finally, an interesting characteristic of mediation in South Africa is the influence of personal relationships or networks on its success. For example, Prof Okumu who mediated the 19 April 1994 agreement between the IFP, ANC and NP is an acquintance of Mangosuthu Buthelezi. Another example, is the mediator who secured the participation of the Freedom Front in the general elections of 1994. Though politically very liberal, Prof Braam Viljoen is not only the twin brother of the Freedom Front leader, Gen Constand Viljoen, but was also acceptable to the ANC because of his familiarity with one of his ex-students, Carl Niehaus, who is an ANC leader. Viljoen also used his involvement in the Transvaal Agricultural Union for access to the conservative groups. The other mediator Jurgen Kogl, a German, is an in-law of the agricultural union leader, Dries Bruwer, who is also a prominent conservative leader. Hence personal and family ties of persons with widely different political orientations made it possible to broker an agreement.

Without the mediation process discussed in this paper the transition in South Africa would not have been possible. International mediation and facilitation has been important mainly in the sense that the negotiators of the new constitution were aware of the omnipresence of the observers, who ensured that no real chance for brinkmanship and sabotage was possible.

REFERENCES

Agreement (1994) Memorandum of agreement for reconciliation and peace between the Inkatha Freedom Party/KwaZulu government and the African National Congress and the South African government/National Party, 19 April 1994 (mimeo.)

Anstey, Mark (1991) Negotiating conflict insights and skills for negotiators and peacemakers. Kenwyn: Juta & Co.

Anstey, Mark (1993) Practical peace-making: a mediator's handbook. Kenwyn: Juta & Co.

Boskey, James B. (1994) The proper role of the mediator: rational assessment, not pressure, Negotiation journal 10(4) (October): 367-372

Buthelezi, Mangosuthu (1994a) Statement by the President of the Inkatha Freedom Party Mangosuthu Buthelezi, Chief minister of KwaZulu and President of Inkatha Freedom Party, 19 April 1994 (mimeo.)

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Huntington, Samuel P. (1968) Political order in changing societies. New Haven & London: Yale University Press

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IFP (1995a) Submission to the Constitutional Committee on international mediation, 23 January 1995 (mimeo.)

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IFP (1995c) International mediation: an essential chronology, 31 March 1995 (mimeo.)
Laurence, Patrick (1990) Death squads: apartheid's secret weapon. Johannesburg: Penguin

Mbeki, Thabo (1995) Letter of Thabo Mbeki to Mangosuthu Buthelezi, 30 March 1995 (mimeo.)

Minnaar, Anthony (ed) (1992) Patterns of violence: case studies of conflict in Natal. Pretoria: Human Sciences Research Council

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Slabbert, F. van Zyl (1992) The quest for democracy: South Africa in transition. Johannesburg: Penguin

Sparks, Allister (1994) Tomorrow's another country: the insider story of South Africa's negotiated revolution. Sandton: Struik

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