Negotiating New Legal Orders: Poland's Roundtable and South Africa's Negotiated Revolution
Heinz Klug
The process of negotiated political change which was the focus of the University of Michigan's conference "Communism's Negotiated Collapse: The Polish Round Table, Ten Years Later," rests on the premise that these processes can establish new political orders. A negotiated agreement to abolish the special status of the Communist Party in Poland—like the agreement to recognize the political rights of all South Africans—implies not only a change in political arrangements but also a more fundamental shift in the constitutional structure of government, in the basic rules of the political game. From a legal perspective, these events represent a particular path for establishing a new political and legal regime. Although revolution, military defeat, decolonization or military coups were for most of the twentieth century the usual precursors to a fundamental restructuring of a state, the century ended with a wave of political changes brought about largely through processes of public negotiation between state and opposition, leading to democratization and the transfer of power. That these new phenomena should occur in a number of countries on three different continents more or less simultaneously—including Chile, Poland and South Africa—was indeed unique.
 During the Michigan conference, Michael Kennedy identified a number of underlying commonalities which characterized the South African and Polish processes of democratic transition, including: (1) the inherent ideological limits on unilateral state reform; (2) the erosion of the dominant ideology, coupled with mass mobilization by the opposition; (3) the existence of powerful religious discourses offering the vision of a peaceful alternative; (4) the adoption of an internationally sanctioned path to democratization; and finally, (5) the creation of a "contractually limited but democratically selected" government.
Significantly, these "commonalities" identified by Michael Kennedy address both the preconditions to negotiations and the outcomes but not the process of negotiations itself. The comparative task must be to identify similarities and differences within these negotiated transitions that will highlight the significance of the Round Table negotiations that began in Poland. Both the ideological limits on state reform and the erosion of that ideology in the context of mass opposition may be characterized as the conditions under which the major protagonists realized that they could neither continue governing nor remain in opposition to any advantage: they were in a position of mutual weakness. The existence of religious discourses, while central in Poland, may not be that significant elsewhere. Although South Africa is a deeply religious and primarily Christian country, religion did not provide an alternative vision; protagonists on both sides of the political divide believed they had God on their side and used biblical sources to justify their conflicting claims and actions. The fourth element stresses the international climate which helped to define the realistic options available to the conflicting parties, and the final element addresses only the immediate outcome of the negotiations. I will suggest that there are important differences as well as similarities in these two cases.
Before attempting to do this, I would like to present a brief description of the South African process. After forty years of apartheid rule—an ideological system based on racist notions of white supremacy and built on the political power of South Africa's white minority—the South African state found itself internationally isolated and facing unprecedented levels of domestic resistance. Despite a number of reform efforts, including the adoption of a policy of separate development for whites and blacks, and later, the acceptance of a tri-racial constitution for the minority groups—white, Indian and "coloured"—the continued exclusion of the African majority precluded any resolution of the conflict. Although a series of steps—including talks with Nelson Mandela in prison, the release of some major political prisoners and even clandestine contact with the exiled African National Congress (ANC)—preceded negotiations, the process was effectively launched by the government's unilateral unbanning of black political movements, including the ANC and South African Communist Party. Even then, the government and the ANC remained far apart. In accepting the need for negotiations, the government argued that their bottom line would be a constitutionally inscribed system of ethnically-based power-sharing with veto rights being retained by the minority groups, including whites. On the other hand, the ANC believed that the government should immediately hand power to an "interim government" to oversee elections for a democratically elected constitution-making body, which would have an unfettered right to produce South Africa's post-apartheid constitution.
The period between February 1990 and the holding of South Africa's first democratic elections in April 1994 parallels the Round Table experience in Poland. Unlike the East European roundtables, the South African process cannot be viewed as a single set of meetings between the government and opposition. Rather, it involved—at the level of formal meetings—three distinct phases: the talks about talks; the Codesa meetings which led to a temporary breakdown in the negotiations; and finally, the Multi-Party Negotiating Forum in which the parties negotiated the "interim" constitution and the transitional arrangements which led to the holding of the first elections. Once the elections were held and the interim Constitution came into force, then the democratic transition entered its next phase—not unlike the subsequent periods of continuing political change that characterized the European experiences. The difference in South Africa after the elections was, however, profound: the shift in political power from the old to new only accelerated, with any negotiations between the parties in the Constituent Assembly and Parliament focused on the creation of the "final" 1996 Constitution.
In comparing the South African and Polish experiences, there are a number of important differences that will have a central bearing on our evaluation of these experiences. First, the role of violence and its relationship to the negotiating process is quite different. Second, the relationship between legal continuity and constitutional change framed both the nature of the demands of the opposition and the position of the government quite differently. Third, both the formal and informal bases for decision-making in the negotiations were different. Fourth, our understanding and characterization of the result raises the question of timing: at what point may we consider the results of the negotiations to have been superseded by subsequent events? Finally, the question of timing, both in the sense of conditions for negotiations—internationally and locally—and in terms of the process of negotiations itself, distinguishes the opportunities and restraints on the parties in these two cases.
Unlike the Polish experience, which, despite the imposition of martial law and other draconian actions by the state, remained essentially non-violent, the South African transition was accompanied by unprecedented levels of violence. In fact, it is fair to say that the process was in many ways driven forward and shaped by the escalation of violence during the political transition and the threat of greater violence if the negotiations had failed. The violence took many different forms: near civil war in Kwa-Zulu/Natal between ANC and Inkatha Freedom Party (IFP) supporters; clandestine state-instigated efforts to disrupt ANC organizing and demobilize ANC supporters in many other parts of the country; a series of massacres and assassinations of ANC supporters, organizers and leaders; and finally, an ill-fated rebellion by neo-fascist whites who attempted in the weeks before the election to instigate the breakaway of the Bophuthatswana bantustan as part of their effort to halt the transition. Yet the effect of the violence was to build, over time, a center of activists and politicians who understood that the only way forward, and the only hope of reducing the levels of political violence, was to proceed with the democratic transition. In many ways the violence, and reactions to it, made the government negotiators realize that their goal of an indefinite, or at least fifteen-year, transition period was unsustainable—the economic and social impact of the violence required a speedier transition to full democracy.
A second important distinction is the legal or constitutional assumptions that underpinned the different sets of negotiations. In Poland, both the government and opposition entered the Round Table negotiations assuming a process of legal reform, beginning with the legalization of Solidarity and its implications for the central constitutional question: the special status of the Communist Party within the constitutional order. In contrast, the South African process could only begin once there was an understanding that fundamental constitutional change was the central issue. Although the regime entered the negotiations believing that it could engineer a period of power-sharing based on ethnicity, by the time the negotiations ended, the "interim" constitutional order agreed to by the major parties clearly provided for a transition to majority rule. Although both processes involved a series of steps towards full democracy, the essentially colonial nature of the South African context made it absolutely clear that, once the vote was exercised by the Black majority, neither the old regime nor its politicians and social support-base would ever exercise political power again. Thus despite the insistence by the old regime in South Africa that there be legal continuity—i.e., that the old regime formally enact the "interim" constitution—unlike Poland, there was in effect an immediate, complete, and final political break. When Mandela assumed the Presidency, there could never again be an elected, white minority-controlled government in South Africa.
This difference is made clearer by understanding the nature of the decision-making process adopted within the South African negotiations and within the "power-sharing" Government of National Unity (GNU) that was constitutionally enshrined in the interim Constitution. Despite the rather large number of parties at Codesa and later at the Multi-Party Negotiating Forum, the principle of "sufficient consensus" was formally adopted as the means of ensuring progress. Although this concept was not fully clarified, in effect it meant that so long as the National Party government and the ANC agreed to a particular point there was sufficient consensus. While this led to great unhappiness on the side of the IFP, the principle effectively reflected the realities of power within the process. The government believed that this arrangement should be formally entrenched as the basis of power-sharing in the executive branch of the GNU. However, the ANC insisted that decisions within the cabinet would, in the event that consensus could not be reached, be made by majority vote. This, combined with the fact that positions within the GNU were to be allocated in proportion to the vote each party received in the elections, meant that the negotiators understood that the degree of power-sharing guaranteed by the constitution was in fact fairly limited. The old National Party would have seats in the new cabinet and thus continue to control some ministries, but Mandela would be free to govern, and the ANC would be able to insist upon the implementation of its own program. In practice, this led to the National Party withdrawing from the GNU well before the end of the guaranteed five years and the ANC finding that the problem of implementation of its policies lay more in the bureaucracy, whose positions had also been guaranteed as part of the negotiated agreement, and in its own lack of bureaucratic capacity.
It is this last element, the nature of the post-election government, that also distinguishes these two sets of negotiations. Despite the formal commitment to power-sharing in South Africa, in fact, the 1994 elections saw a final shift in power. Over the subsequent five years, that shift was consolidated through the writing of the final constitution and the slow transformation of most of the central institutions of political power. While the legacies of apartheid and the realities of economic power and privilege are slow to change, in South Africa, negotiations indeed led to a political and constitutional revolution. Significantly, both the fact of the collapse of state socialism in Eastern Europe and the level of social and political mobilization achieved in South Africa by the anti-apartheid movement during the 1980's, meant that the international and domestic contexts in which the South African "roundtable" negotiations took place—from February 1990 to December 1993—had already been significantly transformed and were quite different from those in which the Polish Round Table took place. Although the South African state had imposed a brutal state of emergency in the late 1980's, the level of resistance to the regime and social mobilization that reemerged as conditions began to change in 1989 made it a quite different context than Poland's.
Despite these differences, however, it is striking, given the obvious political and military power retained by both the South African and Polish states, that the old regimes would succumb to a process in which they were effectively forced to more or less peacefully relinquish the monopoly on formal state power they had formally enjoyed. In this regard the Polish Round Table, while not completely unique (negotiations were clearly on the agenda in South Africa and elsewhere by the late 1980's) set the stage for others as they began down a similar path.
The South African Negotiations
South Africa's negotiated revolution began with the unbanning of the political movements. This led to a series of preparatory meetings in which the ANC insisted that the government fulfil the terms of the Harare Declaration, an internationally adopted statement which required the apartheid regime to: release all political prisoners; unban political organizations; remove military personnel from the black townships; cease political executions; end the state of emergency; and repeal all legislation designed to circumscribe political activity. In a series of "talks about talks," beginning with the Groote Schuur meeting in May 1990, the ANC engaged in direct talks with the government to secure the implementation of the Harare preconditions. These agreements enabled the ANC to begin to re-establish a legal presence in the country as part of the process towards the normalization of political activity. However, by December 1990, when the ANC held its first legal consultative conference in South Africa in over thirty years, its fast expanding legal membership reacted sharply to the rising violence directed by clandestine forces and IFP-aligned hostel dwellers against the black community. Calling for arms and military training, these new members and activists reminded the leadership that the armed struggle against apartheid had not as yet been formally suspended.
At first it seemed that the ANC leadership would respond to the pressure from its membership and demand that an end to the violence be added as a precondition to negotiations. But it soon became clear from the pattern of violence, particularly the manner in which it intensified to coincide with ANC political initiatives, that if an end to violence was to be an additional precondition to negotiations, the state would be in a stronger position to exert control over the transition. Although always denied, both the behavior of the police and military units of the old regime, as well as occasional disclosures about clandestine projects, including the funding and supply of arms to the IFP, made the source of the violence clear. Instead of allowing these episodes of violence to dictate the pace of events, the ANC decided to take the initiative and established its own framework for the transition to democracy: the calling of an all-party conference; demanding the establishment of an interim government; the holding of elections for a constituent assembly to draw up a new constitution; and finally, the election of a democratic government under a newly adopted constitution.
With the convening of the Conference for a Democratic South Africa (Codesa) on December 20, 1991, it appeared that South Africa was entering the last mile of a process which would extend political rights to all the country's citizens. This sense of progress was increased by an apparent convergence of opinion as the major parties—the ANC and the Government—agreed on a number of fundamental issues, including the establishment of a multi-party democracy in a united South Africa with an entrenched bill of rights to be adjudicated by a special constitutional tribunal. Substantive negotiations began with the convening of Codesa's five working groups in February 1992. Their terms of reference included: the re-incorporation of the four bantustans given independence under apartheid (the Transkei, Bophuthatswana, Ciskei and Venda); the creation of a transitional government to lead the country to democracy; a set of constitutional principles; a method for drafting and adopting a new constitution; and the creation of a climate for free political activity.
It was the Codesa working groups that came closest to resembling the roundtable format of negotiations. Each working group, made up of a number of representatives of the twenty-seven different political parties participating in Codesa, met over a period of months between Codesa I and the collapse of Codesa at its second plenary. Although the agreements reached had no formal status after the collapse of the talks, in fact, the basic outline of the transition was first discussed at these meetings. In order to make this clear, I will briefly summarize the issues discussed and agreements reached in the different working groups.
The main task of Working Group One was the creation of a climate for free political activity. The working group focused on resolving the status of political prisoners and exiles, reforming Emergency and Security legislation, regulating broadcast media and the state-controlled South African Broadcasting Corporation in particular, and implementing the National Peace Accord. It also discussed the funding of political parties and control over security forces during the transitional period. In principle, progress was made on most of these issues. The question of the release of political prisoners and return of exiles was identified as, "a priority in the completion of the reconciliation process," but it was decided that it could only be resolved in bilateral negotiations between the government and the ANC. Although the working group agreed to place controls over the declaration and implementation of states of emergency, it agreed that, "special measures are necessary to deal with the threats to public peace and order during the transitional period." The working group's understanding of the role news reporting plays in the creation of a climate of free political participation was reflected in agreement on the establishment of an independent body to regulate the broadcasting media. Working Group One agreed to a range of specific mechanisms to ensure the effective implementation of the National Peace Accord, including the imposition of stronger sentences for the possession of illegal arms or public displays of dangerous weapons. Working Group One also agreed to suspend the Prohibition of Foreign Funding of Political Parties Act until six months after the first non-racial election. Finally, the working group agreed that during the transitional period the Security Forces should be placed under the control of one of the sub-councils of the Transitional Executive Authority.
Working Group Two tackled the question of constitutional transformation, which was divided into two distinct issues. First, it sought to establish a set of constitutional principles which would be absolutely binding on a future elected constitution-making body. Second, the working group would decide upon a method of drafting and adopting a new constitution. However, Working Group Two was torn between the government and its allies, who argued for a broad definition of "constitutional principles," so as to ensure that the bulk of a future constitution be negotiated within Codesa, and the ANC and its allies, who argued for a more limited conception of constitutional principles, so as not to encroach upon the constitution-making functions of an elected constituent body. Although there seems to have been agreement on the inclusion of principles guaranteeing individual rights and democratic political processes, attempts to include principles on the composition of governments and the distribution of power within the state remained contentious.
This contention flowed into the debate on a constitution-making body. The ANC viewed an elected constituent assembly as the only legitimate means of producing a new constitution. The government and the IFP feared that elections would marginalize their role, and sought to resolve all uncertainty about a future constitutional order at Codesa. For the government, this would require the establishment of an interim constitution and a seventy-five percent threshold for the adoption of a new constitution in an elected constituent assembly. The IFP objected in principle to an elected body and insisted that federalism be constitutionally guaranteed prior to any election. Finally, Working Group Two failed to reach agreement and precipitated Codesa's deadlock when the government insisted on a seventy-five percent majority for adoption of a new constitution and the ANC agreed to seventy-five percent for the bill of rights but insisted on seventy percent for the adoption of a new constitution.
Working Group Three achieved greater consensus on how the country should be governed during the transition to democracy, agreeing on a two-phase process. The first stage would involve the establishment of a multi-party Transitional Executive Authority to operate in conjunction with existing legislative and executive structures rid of their tricameral structure, while the second stage was to be a period between the election and the adoption of a democratic constitution. During this period, the elected body would combine the functions of an ordinary legislature and a constitution-making body. In addition it was agreed that an Independent Electoral Commission be established to ensure a free and fair election.
Working Group Four focused on the future of the "independent" TBVC-bantustans and agreed to the principle of reincorporation. Although the parties agreed that the TBVC administrations should come under the control of the Transitional Executive Council, conflict remained over whether reincorporation would be contingent on a decision by the population of each of the TBVC entities. Although the ANC and its allies refused to agree to any procedure which would recognize the TBVC entities' claims to statehood, they accepted that voting in a national election could be arranged to demonstrate support or rejection of reincorporation. Finally, Working Group Five, which was to determine timeframes for the implementation of Codesa agreements, remained dependent on progress in the other groups.
It soon became clear, however, that the convergence in language masked deep differences and a clear strategy on the government's side to retain control of the process of transition and, thus, to project the power of the ruling National Party and its allies into the future through constitutional gerrymandering. Although Codesa's founding declaration included a commitment to a united South Africa the government soon interpreted this to mean merely the maintenance of South Africa's internationally recognized 1910 borders. The government began to insist that there be prior agreement that any future constitution be premised on a strict federal system of government, based on the balkinization of the country into a number of all-but-independent regions. Given the vast racial and economic inequities between different regions of the country, the ANC and its allies saw the demand for federalism as an attempt by the old regime to protect white economic and social advantage through the effective division of the country into different regions, some of which would remain under white control, due to the geography of racial segregation imposed by apartheid. It was this insistence on federalism as a precondition to the creation of a democratically elected constituent assembly and the demand that a new constitution be adopted by seventy-five percent of the proportionally elected constitution-making body, as well as seventy-five percent of the regionally elected delegates, that led to the failure of the second plenary session of Codesa in May 1992.
The collapse of formal negotiations in mid-1992 introduced a period of dramatic tension and conflict in which South Africa came perilously close to abandoning the path of negotiations altogether. The response of the ANC and its allies in the Labour Movement and the South African Communist Party was to mobilize their supporters in a campaign of mass action in demand of a democratically elected constituent assembly. However, the ANC initiative was met with a series of violent attacks on communities, culminating in the Boipatong Massacre, in which IFP-aligned hostel dwellers were escorted by police during an extended and deadly rampage against the civilian population of an ANC-aligned community south of Johannesburg. In response, the ANC announced a formal suspension of multi-party negotiations and demanded that the government halt the escalating violence. The ANC noted that the government was still holding more than three hundred political prisoners, in contravention of earlier agreements, and had made no effort to ban the carrying of lethal weapons by its allied parties, particularly the IFP, which insisted that its members had a right to carry "traditional" weapons, such as clubs, spears and pangas.
After a two day general strike in early August, the state seemed ready to reopen negotiations, making concessions such as the acceptance of international observers and an expansion of the Peace Accord structures designed to address the violence. Despite these concessions, however, the government still refused to accept a democratically controlled constitution-making body. Further, when evidence began emerging of the government's role in political assassinations, the government called for a general amnesty for politically motivated crimes—without documentation of specific responsibility for particular acts.
Rejecting the government's response, the ANC committed itself to intensifying its mass action campaign to ensure free political activity in those areas (bantustans and right-wing white towns) where it claimed local administrations continued to suppress ANC organization. This strategy was designed to highlight the contradiction between the government's claim that apartheid had been abolished while it sustained apartheid's bantustan system, thus denying responsibility for the lack of free political activity in areas controlled by the government's allies. Significantly, it is this same division of power which would leave local communities under the control of local elites, free of national authorities' intrusion, which the ANC feared the government sought to perpetuate through its federalism proposals.
This fear was underlined by the massacre of ANC demonstrators at Bisho, in the Ciskei, on September 7, 1992. The Ciskei security forces fired on 120,000 unarmed demonstrators, leaving twenty-eight dead and nearly 200 injured. On the same day, State President F.W. de Klerk hosted a conference on federalism and regionalism. Billed as an open forum to discuss constitutional options and criticized as an attempt to build an anti-ANC alliance, the conference was supposed to resuscitate the multiparty negotiations, which collapsed at Codesa's second plenary meeting. The massacre overshadowed de Klerk's federal initiative, and the ANC refused to formally re-enter the multi-party negotiations. Nevertheless, the ANC seemed to embark on a process of arms-length negotiations by making public proposals for the transition to democracy.
Seeking to, "create the possibility of a major positive breakthrough,"1 South African Communist Party Chairman Joe Slovo took the lead in arms-length negotiations in the period following the Bisho massacre, proposing the adoption of a "sunset clause," which would provide for compulsory power-sharing for an agreed number of years after the adoption of a democratic constitution. When, on November 18, the National Working Committee of the ANC formally adopted a policy of power sharing with the National Party during the transition, it argued it was necessary to minimize the threat from those in the South African Defence Force, South African Police, other armed formations and the civil service who had the capacity to disrupt and delay the transition.2 A week later, when the policy was adopted by the ANC's National Executive Committee, the NEC said it recognized, "that even after the adoption of a new constitution by the Constituent Assembly, the balance of forces and the interests of SA as a whole may require us to consider the establishment of a government of national unity."3 Despite these concessions, the ANC argued that its "strategic perspective" was fundamentally different than the Government's power-sharing proposals, which sought to, "entrench veto powers for minority parties on the basis of a constitutionally enforced coalition," and thus to, "frustrate the will and aspirations of the majority."4
The assassination of South African Communist Party and ANC leader Chris Hani in April 1993, and the mass outpouring of grief and anger which his death precipitated, galvanized the negotiating process, providing a glimpse of the consequences that might flow from a failure to reach agreement. Marching through cities around the country, hundreds of thousands of mourners expressed an anger and militancy that caused millions of Rands of property damage and openly threatened the possibility of any future racial reconciliation. However, after having just agreed to reopen multi-party negotiations at a multi-party planning conference on March 5 and 6, 1993 the parties refused to allow the right-wing assassins to achieve their aim of shattering the already brittle negotiations process and instead appealed, in the name of Hani, for heightened efforts to achieve a settlement. Within weeks of Hani's death, formal negotiations re-opened in the form of a Multi-Party Negotiations Process at the World Trade Centre outside Johannesburg.
Capitalizing on the pressures raised by Hani's assassination and the growing anger of the Black community, the ANC used this opportunity to demand the setting of an election date. Once a date was tentatively agreed upon—April 24, 1994—the negotiators realized that this could not be easily changed and that time for decision-making was short. In order to facilitate the process, the structure of the negotiations was now revamped. Unlike the failed Codesa talks, in which negotiations were conducted between political party representatives in the different working groups, the new process provided for a Negotiating Council to discuss and decide upon reports from seven technical committees, whose role it was to clarify and present alternatives and issues for the political negotiators. In addition, a ten person Planning Committee was responsible for keeping the process on track by structuring the debates and dealing with grievances. Dominated by academics and lawyers, the technical committees facilitated the emergence of clear alternatives. Although some observers and participants were critical of the "professionalization" of an essentially political process, the process, focused as it was on the production of written proposals, gained momentum. Despite the fact that the technical committees were often required to rework and reconsider their "technical" inputs, the series of reports that flowed from the committees slowly crystallized the position of the Negotiating Council.
At the beginning of the negotiations process the IFP had asserted itself as a third major player, demanding parity with the ANC and the National Party government, but it soon retreated to the advocacy of regional autonomy in an attempt to perpetuate its existing advantage, as the government of a self-governing territory, into the post-apartheid era. Although it described its proposals as federalism, the form of regional autonomy advocated by the IFP and its allies in the Freedom Alliance (consisting of various bantustan governments and pro-apartheid white parties) was closer in substance to a system of confederation. In terms of the IFP's proposals, the different regions of South Africa would constitute autonomous states whose constitutions would dictate interpretation of the "federal" constitution. In other words, any application of the federal constitution to issues within a region or to conflicts between regions would have to be consistent with the constitutions of the relevant regions. This conception of "autonomous federalism" was revealed in both the IFP's proposed constitution for KwaZulu/Natal and its proposed Constitution for the Federal Republic of South Africa, which advocated a federal government of limited powers. The federal government would, according to this proposal, have limited powers in specific areas, while the national legislature would be empowered to adopt general principles of legislation on defined subject matters, in order to establish a framework to facilitate intrastate negotiation over policies in these areas. Finally, any federal legislation would have to be passed by both houses of parliament, effectively giving the senate—made up of four representatives of each state—a final veto over national legislation.
Unable to obtain support for this extreme form of federalism, the IFP joined with its allies in the Concerned South Africans Group (Cosag) to launch the Freedom Alliance, thus effectively achieving collectively what it had failed to achieve unilaterally: the creation of a third power-bloc within the negotiating process. Created in October 1993, this alliance of right-wing white parties committed to the continuation of apartheid and black bantustan parties and governments, with vested interests in the regional enclaves created by apartheid's bantustan policy, demanded that ethnicity be recognized within the negotiating process. Despite some awkward moments—for example, when neo-fascist Afrikaner Weerstandsbeweging (AWB) stormed the negotiating venue and assaulted a number of IFP delegates—this alliance managed to threaten the election process and obtained a series of concessions from the major parties (the ANC and the government) which went some way toward accepting the need to address ethnic concerns.
The negotiations were also subject to various other demands and pressures. The ANC's Women's League staged a sit-in at the negotiations, and, supported by women from all the other parties, won a requirement that each delegation at the negotiations include a woman as one of its two negotiating council representatives. At the same time the Women's League continued to press for greater participation within the ANC, winning a recommendation from the ANC's national working committee that one-third of all ANC candidates in the April 1994 elections be women.5 Gender equality was, as a consequence, formally recognized in the interim bill of rights, and the interim constitution included specific provisions for the establishment of a Commission on Gender Equality, "to advise and to make recommendations to Parliament or any other legislature with regard to any laws or proposed legislation which affects gender equality and the status of women."6 In addition, as part of a general attempt to preempt negotiations, the de Klerk government ratified the International Convention on the Elimination of All Forms of Discrimination against Women in January 1993, binding the South African state to particular international obligations in this area. This successful inclusion of the principle of gender equality into the interim constitution was the product of the interaction of local women's mobilization against gender discrimination and the increased recognition of gender equality as an internationally accepted norm of human rights and constitutionalism.
These gains were not unilinear. Despite these breakthroughs in an otherwise deeply sexist society, and despite the popular repetition of the democratic movement's vision of a "non-racial and non-sexist" South Africa, women active in the negotiations process had to fend off a challenge resulting from the demand to recognize indigenous law. Traditional leaders' claims for the recognition of indigenous culture led to an attempt to include provisions in the interim bill of rights recognizing "customary law" and regulating the contradictions between indigenous law and other "fundamental rights." Although it was rejected, one proposed interim bill of rights granted "any court applying a system of customary law" the power to determine the extent to which customary law undermines the equality provision and to decide when and to what extent these rules—even where they discriminated against women—should be brought into conformity with the constitutional requirement of equality.7 In the end, the interim Constitution came down in favor of gender equality, making indigenous law "subject to regulation by law," implying its subordination to the fundamental rights contained in the constitution, gender equality in particular.8
The process of political transition formally began with the adoption of four statutes in October 1993. After approval in the Negotiating Council and passage through the white-controlled Parliament, these new laws marked the legal demise of the old constitutional order. Although the unraveling of the apartheid constitutional framework had already begun with the abolition of the President's Council and the amendment of legislation defining the status of the bantustans, it was only with the passage of the Transitional Executive Council Act that power began to formally shift away from the allocations determined by the 1983 Constitution. Together with the three other Acts passed at the same time—the Independent Electoral Commission Act, Independent Media Commission Act and the Independent Broadcasting Authority Act—the Transitional Executive Council Act provided the basis for a pre-constitutional order directed towards the holding of a democratic election.
Although the ANC's demand for an interim government had been rejected by the National Party government, the agreement to establish a transitional executive council constituted recognition of the fact that the government could not retain control over the transitional process. Providing for formal power-sharing over specific areas of governmental activity and outright authority over issues affecting the transition to a democratic order, the Transitional Executive Council Act allowed the negotiating parties access to the governing process without making them responsible for apartheid policies and programs which would be beyond their power to change. In terms of the Act, the TEC was to be constituted by all participants—governments, administrations and political groupings—in the multi-party negotiating process who wished to be represented. The TEC was directed by the Act to facilitate and promote the transition to democracy through the achievement of two primary goals: the creation and promotion of a climate of free political participation and the creation and promotion of conditions conducive to the holding of free and fair elections. Reflecting the significant involvement of women in the negotiating process, the Act specifically directed the TEC to have as one of its objects to "ensure the full participation of women in the transitional and electoral structures and processes."
The TEC mirrored, through its seven subcouncils, the most important government ministries and functions, thus enabling it to formally monitor and intervene to the extent of its mandate in all the vital aspects of governance. Among the TEC's specific powers and duties was the power to order any government or administration under its jurisdiction not to proceed with proposed legislation if it determined that such legislation would have an adverse effect on the TEC's objectives. This power to issue "desist orders" extended to any decision or action of any government, administration, political party or organization that was a party to the TEC. Although the IFP refused to take part in the TEC, s21(1) of the Act made the Act applicable to all self-governing territories regardless of the Self-Governing Territories Constitution Act of 1971, thus making KwaZulu formally subject to TEC oversight, regardless of the KwaZulu administration's and IFP's rejection of the TEC.
Apart from the power-sharing devices designed to achieve a level playing field in the political process leading up to the elections, the pre-constitutional legal framework centered on two Acts designed to manage the election itself. The first of these was the Independent Electoral Commission Act, which sought to remove the electoral process and authority for the verification of the elections away from the sitting government, because the black majority, who had been historically excluded from the vote, feared that government officials might attempt to interfere with the democratic process, or that government control of the process might bring suspicion upon its veracity. Secondly, the Electoral Act dealt with the conduct of the electoral process itself and the technical minutiae of the election, including the form of the ballot paper, the identification of voters, the procedures at the polling stations, and the exact formula for counting the ballots and calculating the proportional distribution of legislative seats between the parties. The most significant departure from past electoral law, apart from the adoption of a universal franchise, was the move away from a constituency-based electoral system to the adoption of proportional representation. The Independent Electoral Commission (IEC) had responsibility for ensuring a fair electoral process and verifying the result as "substantially free and fair." Appointed by the State President on the advice of the TEC, the IEC was comprised of "impartial, respected and suitably qualified men and women" representing a cross-section of the population. It included five non-South Africans drawn "from the international community," and was "independent and separate" from all existing bearers of political authority or power.
The adoption by Parliament of an "interim" constitution on December 22, 1993, brought into "legal existence" the constitutional agreement reached after months of negotiations. Although intended to be an "interim" constitution with a lifespan of only five years, it effectively secured the final demise of the racially-structured constitutional system and the apartheid order which flowed from it. In terms of this "interim" constitution the parliament was to play the dual role of legislature and Constitutional Assembly, and was charged with the task of adopting a new constitution within two years. In the course of negotiations, there were significant changes in the positions of the major players and compromises that were cobbled together in the interim constitution. Most fundamentally, the ANC's demand for a unitary state came to be interpreted to mean national sovereignty over South Africa within its 1910 boundaries, rather than a central government with preemptive power over regional authorities. As a result of this change in policy, the issue of federalism, rejected initially by the ANC because of a fear that the need to redress the legacies of apartheid might be frustrated by the emasculation of central government powers under a federal structure, became a central feature of the constitutional debate. The adoption of the language of "strong regionalism" by both the ANC and the National Party government coincided with the National Party's acceptance that the absolute veto powers of the upper house of the legislature would be limited to regional matters and that its notions of political consociationalism would be restricted to local government structures. Although the National Party government accepted the rejection of its proposals for a rotating presidency and equal representation of political parties in the Senate, many of the provisions of the 1993 constitution, and in particular its guarantee of a five year government of National Unity, satisfied some of the goals implicit in the government's earlier proposals.
Unlike the ANC and the National Party government, the IFP refused to compromise on its central claim to regional autonomy and, in its alliance with white pro-apartheid parties, continued to threaten to disrupt the transitional process. Although factions of the IFP seemed ready to contest the elections for the KwaZulu/Natal regional government, the party's leader, Chief Buthelezi, interpreted the IFP's poor showing in pre-election polls as cause to promote an even more autonomous position encouraging and supporting King Goodwill Zwelethini in his demand for the restoration of the nineteenth-century Zulu monarchy with territorial claims beyond the borders of present-day KwaZulu/Natal. By the time the constitution was adopted by parliament, the IFP and the white right-wing parties of the Freedom Alliance had walked out of the multi-party talks. The IFP was particularly concerned about the failure of the ANC and the government to concede anything but concurrent legislative powers to the regions. In order to address these concerns, the constitution was amended in March 1994 and regional legislatures were granted powers of preemption over national legislation. However, it was only after the constitution was amended a second time in April 1994 to entrench the constitutional status of the Zulu King in KwaZulu/Natal that the IFP agreed—within days of the polls opening—to participate in the election.
Conclusion
Although these processes of negotiated change in Poland and South Africa provide an extraordinary example to the world of an alternative to conflict and social disintegration, it is important to situate these processes in their particular historical contexts. Despite the commonalities of negotiations and step-by-step democratization, the particular facts—the collapse of state socialism in Poland and the effective decolonization of South Africa—provided completely different circumstances and outcomes. Despite their dramatic loss in the elections, members of the old regime and their political heirs would continue to play a role in Polish politics, even enjoying the possibility of being democratically elected to positions of power in some circumstances. In South Africa the democratic transition, granting political rights to an African majority that makes up close to eighty percent of the population, means that, not unlike other post-colonial situations, the old political elite and its particular social base is effectively precluded from holding political power in the future. Here, the negotiations could not be limited to the establishment of a democratic opening, but had to include the creation of institutions and processes that provided a sense of security for the minority losing power. In this sense the creation of a supreme constitution with an entrenched bill of rights was as central to the South African negotiations as the process of democratization itself. In contrast, the Polish negotiations focused on the creation of political opportunity, even as it was understood that the future of the whole economic and social system was at stake. It is by understanding the role of "roundtable" negotiations in such disparate circumstances that the lesson and value of these experiences may benefit others seeking ways to overcome entrenched conflicts.
Supplemental Readings
Baaklini, Adbo I. and Helen Desfosses, eds. Designs for Democratic Stability: Studies in Viable Constitutionalism. Armonk, NY: M.E. Sharpe, 1997.
Banting, Keith G. and Richard Simeon, eds. Redesigning the State: The Politics of Constitutional Change in Industrial Nations. Toronto: University of Toronto Press, 1985.
Epp, Charles R. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago, 1998.
Friedman, Steven. The Long Journey: South Africa's Quest for a Negotiated Settlement. Johannesburg: Ravan Press, 1993.
Lijphart, Arend and Carlos H. Waisman. Institutional Design in New Democracies: Eastern Europe and Latin America. Boulder, CO: Westview Press, 1996.
Sartori, Giovanni. Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes. New York: New York University Press, 1994.
Sparks, Alister. Tomorrow is Another Country: The Inside Story of South Africa's Negotiated Revolution. Johannesburg: Struik Publishers, 1994.
Tate, C. Neal and Torbjorn Vallinder, eds. The Global Expansion of Judicial Power. New York: New York University Press, 1995.
Waldmeir, Patti. Anatomy of a Miracle: The End of Apartheid and the Birth of a New South Africa. Penguin Books, 1998.
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Negotiating Radical Change
Understanding and Extending the Lessons of the Polish Round Table Talks
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