Top-down Contractualism – Establishing Multiparty Congresses in South Africa
Multi-party negotiating congresses in desperate situations of social conflicts usually do not spontaneously spring into being; they must be nurtured often by far-sighted leaders recognizing the necessity of peacemaking at multiple levels, such as among elite diplomacy and public engagement. Their establish- ment requires the application of sophisticated political moves, creative tactics, and even crafty manipulations by major political powers, social movements, and the international community.21 Indeed, in South Africa, it was the special relations between Mandela and De Klerk that enabled the establishment of the much publicized multi-party representative negotiating congresses. Leaders must stand ready to defend the peace process vigorously when spoilers arise.
21 For a discussion of the difficulties to establish the multiparty talks in Northern Ireland
during the troubles, see Courtney, Lust-Okar and Shapiro (2005: 302) and Dixon (2002).
In South Africa the idea to establish the multi-party negotiating congress sprang from the necessity to form a new constitution – a new set of rules and understandings to become a “non-racial democracy.” The question was who should compose and negotiate the new constitution, which seemed to require a broader form of consultation, to encompass racially diverse public constitu- encies, than in constitutional conventions of the type seen in other contexts, including the US context. The government preferred a constitutional assembly composed of representatives of all existing political organizations. However, this kind of convention would never reflect South Africa’s population (20 mil- lion blacks and 5 million whites). The representatives of the ANC saw in this proposal a manipulative attempt to maintain a softer version of apartheid.
Mandela found a way out of the stalemate and succeeded in pushing the peace process forward in a series of steps that included liberal pluralist nego- tiations. In 1991, he called for an “all party congress,” as the government wanted to negotiate binding principles for a subsequent constituent assembly, which would be elected according to the standard “one-person, one vote,” as the ANC advocated (Sparks 1994: 128–129). The compromise was a temporary solution to the main controversy (power sharing versus majority rule). It ushered in the multi-party congress phase (CODESA 1 and 2) as an opening move toward the establishment of a constituent assembly and the eventual contractual outcome.
After the collapse of CODESA 2, a compromise between power sharing and majority rule was found due to pragmatic considerations. The ANC leadership began to understand that simple majority rule could result in major difficul- ties. The reason was that the operative system (bureaucracy) was almost totally controlled by the white Afrikaners who could have sabotaged the operation of any new government.22 On the other side, white minorities, seeing military losses in places such as Angola as well as economic consequences in contin- ued effective external boycotts, began to internalize a new reality where white domination was no longer acceptable.
The leaders of the two dominant parties (ANC and NP), still operating mainly at the elite level, began to recognize their interdependence. The status quo of stalemate became too costly, especially in view of international economic boycotts, and too dangerous as the ongoing violence, including clan and tribal
22 As Joe Slovo, the leader of the South African Communist Party and a leading member of the ANC, put it: “we can win political office, but we won’t have political power” (quoted in Sparks 1994: 182).
International Negotiation 19 (2014) 1–34
20 Handelman and Pearson
communal violence stoked by political interests, continued to increase. The result was extensive bi-lateral negotiations between the government and the ANC that produced a “Record of Understanding” in September 1992.23 This historical document, which was signed by Mandela and De Klerk, established conditions to resume the multiparty negotiations (Sparks 1994: 184).
On 1 April 1993, the Multiparty Negotiating Forum (MPNF) assembled to negotiate an interim constitution for South Africa. In contrast to CODESA, which included only 19 parties, 26 parties participated in the MPNF. The peace process thus was extended and began to have a life of its own; even spoilers began to realize that violence was counter-productive and joined the politi- cal process. This time the chief negotiators of the two main political parties clearly set the tone of the discussions. They reached compromises on the stick- ing point through bi-lateral negotiations before taking them to the forum.
In practice, then, it was the two major parties (ANC and NP) that drafted the new constitution – initially in a Realist calculation about the future and ulti- mately in a liberal pluralist format – while the multiparty talks created a socio- political environment to accept it (cf. Sparks 1994: 194). The new constitution, a form of top-down contractualism where operational rules for co-existence were put in place without necessarily resolving all outstanding issues and sus- picions, was finalized and approved on November 18, 1993, culminating eight years of difficult negotiations on multiple levels. Indeed, as we argue, the con- tractual arrangements were solidified as the date for initial democratic elec- tions neared: the process was made even more “public” as the ANC organized political training meetings throughout the country so that previously disen- franchised groups could learn to participate constructively and within the rules in the electoral processes and in civic life.