South Africa: Constitutional Assembly Resources

22 February 1995

I enclose a copy of a paper prepared by me in April, 1990, and submitted to the Law Commission in May, 1990. Some time later, a curt acknowledgement was received from that body (probably written by a junior clerk!). Patently, not a blind bit of notice was taken and I wonder if anyone who had any authority at all even read it.

I re-submit it to you in the hope that it may not be too late for some public debate to be kindled on the subject of the definition of true democracy, and on the perils of concentration of political power. In great humility, may I state that I and my friends would value the considered and detailed opinions of leaders such as Messrs Cyril Ramaphosa, Roelf Meyer, Colin Eglin and Mangasuto Buthelezi, if they could be persuaded to read my submission.

Moreover, I would like to be re-assured that the present exercise of inviting comments and opinions from the people is not just another example of massive public deception and/or window dressing. A lot of ordinary folk hold the opinion that many, if not most, politicians think they know it all, and whatever the people may think, they will do whatever they perceive be be best for themselves anyway (eg trying to find constitutional means of entrenching their own political power and personal material wealth). I am not being cynical. Just consider what has happened all over the world

I believe we should not attempt to re-invent the wheel and so I would urge the architects of our future constitution to consider seriously the origina7 American

model which was crafted over many years of patient and dedicated research and work, and which could be adapted for our country just as successfully as the Swiss people adapted it more than 150 years ago for theirs. Consequently, they have enjoyed peace (internally and externally), stability and prosperity despite marked differences of language, background, culture and religion.

A H G MUNRO

THE NEW SOUTH AFRICA : HOW SHOULD WE BE GOVERNED ?

INTRODUCTION-

1. In submitting this paper for consideration by the Commission, it is not the writer's intention to propose a new constitutional model, but rather to provide some cogent reasons for the adoption of a tried and tested model, namely, the canton system or confederacy.
2. It is also emphasized that, except for the historical references from the Bible, no reference works have been consulted and so none is acknowledged. This paper is not intended to be a profound or learned dissertation. As a very ordinary citizen, its author is writing from his

perception of history (inadequate though his knowledge thereof may be), from his observation of human nature and behaviour, and from a genuine concern that a solution to our country's complex sociopolitical problems such as will

satisfy the overwhelming MAJORITY of all its citizens will

be found,and a constitution to put such solution into effect introduced at the very outset of the so-called "new South Africa".

WHAT 15 DEMOCRACY?

3. It appears that there is one common factor in the utterances of almost all political leaders in our country. With perhaps a couple of minor exceptions, all claim to espouse a democratic system. It seems logical, therefore, to start at that point.

4. "Democracy" is a much used and unfortunately also a much abused
word. it means different things to different people. The Westminster constitutional model is democratic

in the sense that all adult citizens may vote for the

candidates of their choice (although in practice this usually means voting for the Party of their choice), but in the sense that a minority party in terms of votes may come to power, it is not.
Even the system used in the United States, upheld as the greatest of the democracies, is open to manipulation. It is paradoxical but true that democracy can be self-defeating. At the risk of over-simplifying the complex internal political manoeuvring that took place, let us consider what happened in that country only four years ago:

5.1 The Republican Party, fearful of losing its slender majority in the United States Senate, hurriedly put together a package of sanctions to be imposed against South Africa, in the (vain) hope of reversing the impact on the ill-informed electorate of the Administration's policy of constructive engagement towards South Africa.

5.2 President Reagan, at the time demonstrably the most popular Head of state in the United States for many years, duly vetoed the sanctions legislation adopted by Congress and was in turn duly overruled by the Senate, including Senators of his own party. What better way could there possibly have been of demonstrating their solidarity with the fashionable liberal anti-South African sentiments of the 1986 US electorate?

5.3 The Republicans were well aware that there were few black Americans who would vote for them and they therefore needed to gain more support amongst white Americans for their candidates. The existence of the black minority which was known to favour the Democrat:S was therefore a major factor in the policy decision of Congress to impose sanctions on a foreign country.

5.4 Another factor which played a fairly significant part in the decision was self-interest. An EMOTIVE issue was turned to good account in protecting the ECONOMIC interests of certain sectors which could not comfortably compete with imports from South Africa.

True free enterprise, like true democracy, was conveniently sacrificed.

6. Special interests are extensively and intensively lobbied in the corridors of power in Washington DC. That this happens

makes a mocker of the principles of true democracy.

7. How then may democracy be defined? In layman's terms surely it is government of all of the people, for all of the pepple, by all of the people and with the consent of all of the people. In practice that is an impossible ideal, but the closer one can come to it, the greater the number of people who will be happy.

SOME LESSONS PROM HISTORY

Ancient Israel

8. After the twelve tribes of Israel had entered Canaan, defeated the peoples living there, and occupied the land under the leadership of Joshua, a loose confederacy of the tribes evolved. For many years this continued to be so. Then the Philistines, who had not been annihilated when the children of Israel moved in, nor when they were defeated by Samson, became a major military power, having acquired iron weapons and tactical mobility in the form of chariots.

9. At about the same time, the prophet Samuel who "judged" Israel in those days, being of advanced age appointed two of his sons to be "judges" )but they proved to be corrupt.

10. The cry went up for a king such as ruled over other nations. The temporal need, in fact, was for a competent military general to head a combined army, and for an incorruptible judiciary, not actually for a political personage. The prophet Samuel was very much against the idea of a king, but the clamour from the people was strong and persistent.

11. He sought God's will in the matter and was told to let the people have their king but also to warn them of what they

were letting themselves in for! This he did but they insisted on having a king.

12. Alas for the people of Israel, the kings who succeeded David and Solomon, with some exceptions, contributed greatly to the fall of both Israel and Judah in 722 and 586 B.C. respectively. Corruption, nepotism and human wickedness on a large scale, encouraged by some kings and tolerated by some others, brought divine punishment on a large scale.

(Author's Note: For the biblical references used for this short narrative, see the books of Joshua, Judges, 1 and 2 Samuel, 1 and 2 Kings and 1 and 2 Chronicles, with particular reference to 1 Sam 8).


Europe After the Fall of the Roman Empire

13. Centuries of chaos, bloodshed, slavery/serfdom and misery followed the relative order created by the Romans in the greater part of Europe. The so-called PAX ROMANA was based on a large measure of local autonomy in the Political sense. It is also noteworthy that the Romans produced an excellent

codified set of laws and that the laws were generally applied with praiseworthy impartiality. Alas, the Roman

Empire disintegrated because of the rot and corruption which tends to set in in high places where there is too much

personal power and wealth.

14. Be that as it may, conflict was the order of the century after the collapse of Rome! Empires and kingdoms were created. Empires and kingdoms fell. Mass migrations of people took place. The great and powerful Church of Rome tried to provide a unifying influence under the banner of (autocratic) Catholicism, and failed.

15. But what was happening was that Europe was gradually evolving into a number of politically independent states whose geographical boundaries roughly equated to common ctiltural/tribal and language regional groups. There are a few exceptions which exist to this day and the Western European region is relatively free from internal conflict.

observers are, however, doubtless watching the situations which exist in the Basque and Flemish regions of Spain and Belgium respectively.

16. The notable exception to relative homogeneity is Switzerland. Multi-lingual and multi-cultural, it has become an enduring social, economic and political success story, because it adopted a constitution based on true democracy and which therefore catered for its diversity of peoples and languages.



The Short-Lived Federation of Rhodesia and Nyasaland

17. Let us now consider a relatively recent chapter of history: the creation, short life and demise of the Federation of Rhodesia and Nyasaland. What a noble concept its creation was considered to be ! Many people, including the author, were starry-eyed about it and its ideal of partnership. A noble concept it doubtless was, but regrettably it was doomed to failure from before it was born, given the difference in backgrounds, languages and cultures of its

peoples, indigenous and imported.

18. In comparison with South Africa, there were relatively few different tribes and languages. However, it brought home to us once aga

in that nationalism is a very powerful factor ‑we underplay its massive influence at our peril.

What About the Rest of Africa North of the Limpopo?

19. The history of Africa north of the Limpopo since 1950 is only too vivid in the memories of South Africans. Perhaps it is nevertheless relevant to remind ourselves of two dominant features which have been manifest in most of independent black Africa:

19.1 Firstly, the importance of gaining absolute Political power was embedded in the minds of African nationalists in accordance with the blasphemous dictum of the late Dr Kwame Nkrumah of Ghana, the first African state to obtain political independence from its former colonial

master (Britain). He said: "Seek ye first the political kingdom and all these (other) things shall be

added to you." It is hardly to be wondered at that in the main the power seekers paid lip service to democracy before independence and favoured the

Westminster model as their route to political power and thence to personal wealth and aggrandisement.

19.2 Secondly, in most cases, political power was handed over by the former colonial powers in the wake of one

man, one vote elections, t o leaders of black revolutionary forces who retained power only as long a they were supported by the military. Military coups have subsequently occurred in all but two or three "independent" black states, resulting in a plethora of unstable military dictatorships run by men with no knowledge or experience of the interplay of economic, social and political forces and also no idea of the proper place and function of the military arm of government.

Eastern Europe , Middle East and Asia

'10. Nationalism, together with the desire for individual freedom, is playing a major role in the events taking place in Eastern Europe and Asia today. Religious differences, particularly in the Middle East and the Indian subcontinent, also constitute a major factor in the conflict situations which exist in those parts of the world.

21. The situation in modern Israel and its near neighbours is tense and has been so for over forty years. Nationalism, based on religious and ethnic considerations, is the dominant force in the conflict.

2 2 . It is worthy of note too, that on the Indian sub-continent politically divided in order to avert a major clash between religious groupings, neither the Sikh issue nor the Tamil issue has yet been resolved. People do not easily accept political dominance by others.


What About South Africa Itself?

2 3 . Separate development of nationalism, was reduce the chances bringing into being white nationalistic author's memory is in South Africa, because of the forces seen by many to be a system which would of conflict and bloodshed by virtue of a sort of coexistence between black and ideologies. Predictably (and if the not at fault many thinking people like Colin Steyn did so predict) it had little chance of enduring success, given the nature of the social and demographic structures of the country in post-World War II South Africa. It was forty years too late to have any chance at all of succeeding.

24. Moreover, it should be noted that it was, regrettably and shamefully, also exploited to the full by many white South Africans (and by some black South Africans too) for their own self-enrichment purposes, as well as by opposition white politicians to score cheap political points, while they themselves enjoyed the biased economic advantages inherent in the system.

25. The architects of grand apartheid, secure in political power, decided to fly in the face of social realities, and built up a system which is proving most difficult to unscramble peacefully in harmony with efforts to find another acceptable to the citizens of our country.Artificial segregation (or apartheid) is a sociopolitical evil which should be eliminated from society. But to replace it with artificial integration would be another sociopolitical tragedy. The latter evil is the mirror image of the former.

WHAT ARE THE LESSONS?

26. So what lessons does history have for us in South Africa,with our complex sociopolitical situation? There are several:

26.1 The nation as a whole must recognize the ultimate sovereignty of our Creator God while at the same time religious freedom must be respected.

26.2 Placing political power in the hands of a few is a recipe for disaster. As a wise person once remarked:

"Power corrupts; absolute power corrupts absolutely".

26.3 The forces of nationalism amongst people constitute a major factor in determining what sort of government and constitution they will accept. Forced integration must be avoided.

26.4 Whether the ultra-liberal theorists like it or not, birds of a feather d-o flock together, unless they are caged! Cognizance must be taken of this natural phenomenon.

26.5 Care must be taken to avoid the possibility of military commanders with political ambitions using their positions to stage coups. This aspect needs careful thought and planning but the difficulty is by no means insurmountable.

26.6 Care must be taken not to impose artificial integration, since this runs counter to ethnic, religious and nationalistic considerations. Freedom of

association/disassociation must be a part of the solution.

26.7 The exploitation of people held in captivity by political or economic power must be prevented. An honest day's work must be given for an honest day's pay, and vice versa.

26.8 The principle of an independent judiciary, free of political pressures and influences, must be maintained and the force of law must guarantee the integrity and independence of the judicial system.

26.9 There is a constitutional model which does cater for the needs of a diversity of peoples, with differing backgrounds, cultures, languages and religious beliefs, and which does achieve unity in diversity.
IMPLEMENTING THE LESSONS OF HISTORY AND EXPERIENCE Step-by-Step Approach

27. In the interests of posterity, it is important to adopt a step-by-step approach in striving for a constitutional basis which will satisfy the aspirations of our heterogeneous peoples.

2 8 . Firstly, the common ground of the expressed desire for a on-racia democracy should be investigated. Agreement on the definition of democracy as it will apply to our country must be reached. The closer that definition can come to the basic one given in paragraph 7, the easier it will be to resolve constitutional and other issues.

29. Secondly, in order to satisfy the democratic principle of government with the consent of most of the people and to protect them from subsequent exploitation, it will be necessary to draw up a bill of basic and inalienable

individual human rights.in such a bill, freedom of expression, freedom of religion and freedom of association/disassociation should be enshrined. The light

of individuals to impartial justice and recourse to legal intervention should also be included.

30. Thirdly, existing nationalism must be respected, and the people in the "independent" states and self-governing homelands must be offered the option of becoming or

remaining politically independent or rejoining/remaining with South Africa. Nationalist feelings must be respected.

31. Fourthly, all leaders must accept that there can be no question of allowing political power to be concentrated in the hands of a few, even if the few represent the expressed wishes of the people at a given time. Political power must be vested in and must remain in the people who elect representatives to execute their political will. Government must be by, of and for the people.
32. When all the aforementioned matters of principle have been resolved, a constitution which will satisfy those principles will evolve through negotiations. The author is confident that if the definition of democracy and the principles involved in its implementation are respected, a confederal system of government will emerge. Then perhaps a timetable for practical implementation may be decided upon.

33. Perhaps 1 January 2001, a date of great symbolic importance could be the target,, with the last five years of the current century being used for thorough preparation under an all-party government, and for an orderly and systematic devolution of real political power to agreed levels in a confederal democracy.

CONCLUSION

34. In this paper the author has endeavoured to set out historical reasons for favouring a confederal type of constitution for South Africa, and to warn against the pitfalls of concentrating power in the hands of a strong central authority.

35. The approach has been empirical in nature, not theoretical. However, the nuts and bolts of a confederal system suitable for South Africa have not been considered. It is essential first for all to agree on the basic principles underlying the system, such as an agreed definition of democratic rule, before tackling the details.

36. The author hopes that those who meet together to negotiate our future will, under the guidance of Almighty God, be prepared honestly to acknowledge the mistakes of the past, whether committedby South Africans or by others, and to learn from them.