CODESA: Convention for a Democratic South Africa

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CODESA : first plenary session, direct transcription & relevant documents, 20 & 21 December 1991
(1991) Convention for a Democratic South Africa : (Kempton Park, South Africa); Corbett, Michael McGregor
The first plenary session of the Convention for a Democratic South Africa (CODESA) was held from 20-21 December 1991, at the World Trade Centre Kempton Park. Chief Justice Michael Corbett opened the session, and the presiding judges were Petrus Shabort and Ismail Mohamed. Delegates from nineteen political parties attended, as well as leaders from the various homeland governments. Representatives from the United Nations and the Organisation of African Unity were also present. Speeches were made by prominent figures such as Chris Hani, Nelson Mandela, F.W. De Klerk and Helen Suzman . The terms of reference and the assignments of the five working groups, tasked with dealing with important issues facing South Africa, were discussed in detail. At the conclusion of the session, the delegates signed the Declaration of Intent, thereby committing themselves to negotiations and to the establishment of a democratic, non-racial South Africa.
Working documents for CODESA 2, 15 & 16 May 1992
(CODESA, 1992) Convention for a Democratic South Africa : (Kempton Park, South Africa)
Volume one contains the standing rules of CODESA and the assignments and terms of reference of 4 of the 5 Working Groups. Working group 1 was tasked with addressing itself to the creation of a climate for free political activity for all South Africans. They were also asked to consider the role that the International Community could play in the period leading up to the new constitution. Working Group 3 had to make recommendations as to how the country should be governed until the introduction of the new Constitution. Working Group 4 had to consider the future of the TBVC states , with a view to their re-incorporation into South Africa. Working Group 5 was asked to set up time frames for the completion of all the processes and assignments undertaken by CODESA, its working groups and other bodies created as a result of the decisions of CODESA. The report for Working group 2 is not included in this volume, but can be found in volume 2.
CODESA : second plenary session, direct transcription & relevant documents, 15 & 16 May 1992
(Seemac Transcriptions, 1992) Convention for a Democratic South Africa : (Kempton Park, South Africa)
Speeches made by political leaders regarding the failure of Working Group 2 to reach agreement on the issue of democratic constitution making. The failure of Working Group 2 meant that there could be no effective implementation of the measures proposed by the other Working Groups. CODESA 2 was effectively deadlocked. The blame for the deadlock was laid firmly at the door of the South African Government. The National Party’s concerns regarding the representation of minority rights in Parliament was perceived as an attempt to cling to power.
Report on regions
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Planning Committee on Regions
On 7th May 1993, the Negotiating Council agreed that the Planning Committee should submit recommendations to it on the appointment, terms of reference and time frames of either a commission or a committee on regions. The Planning Committee asked the Technical Committee on Constitutional Issues for recommendations in this regard. The Technical Committee reported, that based on the submissions it had received, there appeared to be broad agreement that the most suitable form of state for the future would be one which would involve all allocation of powers to a central government and regional governments. The differences that existed related to boundaries, and the powers and functions of the regions. The Technical Committee suggested that there was a clear role for a broadly based Commission which could deal with demarcation issues. The Committee gave recommendations regarding the establishment of the Commission, its composition, terms of reference and functions. A suggestion was made that the Commission be required to submit its recommendations to the Negotiating Council, no later than one month after its appointment. A recommendation was made that the Commission should take the following factors into consideration: historical boundaries, the need to rationalize existing structures (including the TBVC states and self- governing territories), the need to minimize inconvenience to the people, cultural and language realities, economic viability, developmental potential and demographic considerations. The Planning Committee, with the assistance of the Technical Committee was tasked with preparing draft terms of reference for the Commission, which would then be considered by the Negotiating Council.
Report of the Commission on the Demarcation /Delimitation of SPRs
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Commission on the Demarcation of States/Provinces/Regions
On 28th May 1993, the Negotiating Council of the Multiparty Negotiating Process established the Commission on the Delimitation/Demarcation of SPRs (states, provinces, regions). The Commission consisted of 15 members and was given a time frame of 6 weeks to complete its mandate. The Commission held its first meeting on 8th June 1993 and reached a decision by 31 July 1993. The task of the Commission was to make recommendations on the demarcation of SPRs in South Africa. The question of structures, powers and functions of the SPRs was not included in the Commission’s terms of reference. The Commission was required to hear representations from the public , and to allow all interested parties to submit their views within a specific period of time. The Commission’s working procedure was to gather information and to hear evidence. They then processed the information and prepared a final report. The Commission did not try to predetermine the appropriate number of SPRs nor their size. Rather it sought to obtain guidance on these issues by examining submissions received, and by applying the criteria provided by the Negotiating Council. They also took into account international experience regarding the process of demarcation of regions and the criteria for the demarcation of regions. The Commission reported back to the Negotiating Council and recommended that 9 regions be demarcated.
South Africa. Negotiating Council of the Multi-Party Negotiating Process. Techncial Committee on Fundamental Rights During The Transition.
(CODESA, 1993)
The Technical Committee on Fundamental Rights During the Transition concerned itself only with those rights and freedoms regarded as essential for the transition to democracy in South Africa. The Committee was not tasked with compiling a Bill of Rights for South Africa. The Committee considered the criteria necessary for regarding rights and freedoms as fundamental. Three categories were initially identified, but these were later reduced to two, namely those rights necessary to ensure democracy during the transition, and those aimed at the overall security and well-being of all citizens during the transition. The Committee looked at the means and mechanisms for the entrenchment of fundamental rights and freedoms, as well as the criteria for the limitation and suspension of those rights and freedoms.
Reports of the Technical Committee on the Transitional Executive Council and Sub-Councils
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Technical Committee on the Transitional Executive Council and Sub-Councils
The Technical Committee on the Transitional Executive Council was of the opinion that a Transitional Executive Council (TEC) was needed during the period leading up to the first democratic elections. It was felt that a TEC would offer participants in the Multi-Party Negotiating Process an opportunity to participate in matters relating to the effective and satisfactory management of the first stage of the transition to democracy. In this document, reports 1-3 and 5-6 deal mainly with the composition, powers and functions of the proposed Transitional Executive Council and its sub-councils. The 4th report contains the 4th working draft of the Transitional Executive Council Bill, as well as the opinions expressed by various political parties regarding the need for a Transitional Executive Council
Draft Electoral Bill
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Technical Committee on an Independent Electoral Commission.
The purpose of the draft Electoral Bill was to regulate elections for the National Assembly and all provincial legislatures to be elected in terms of the Constitution of the Republic of South Africa Act, 1993. This document contains versions 2-7 of the draft Bill. The second version includes an explanatory memorandum by the Technical Committee on the Electoral Bill, explaining substantive changes that needed to be made due to comments , suggestions and criticisms made against the first version by members of the Negotiating Council. The second version attempts to address these comments, suggestions and criticisms. Certain changes were made with regards to entitlement to vote, procedures for registering parties, foreign votes and special votes. The third version of the Bill contains the CSIR’s second interim report on the ink and sensors to be used in the April 1994 election. Versions 5 and 6 contain clauses printed in italics. These do not represent final formulations, but reflect the outline proposals adopted by the Task Group. Some clauses are also in italics to indicate that they had not yet been settled by the Technical Committee.
Independent Media Commission Bill : drafts and special reports
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Technical Committee on the Independent Media Commission and the Independent Telecommunications Authority
The aim of the Independent Media Commission Bill was to establish the Independent Media Commission for the purpose of ensuring, during the period of the first national election for the National Assembly and other legislatures, the equitable treatment of political parties by broadcasting services. The Bill further sought to ensure that state financed publications and state information services did not advance the interests of any political party. The Bill also contains the composition, powers, functions and duties of the Commission. This document contains drafts 6-12 (final) of the Bill, as well as the special reports on the 9th and 10th drafts of the Bill. The agenda for the discussion of the final draft of the Bill is also included.
Document pack
(CODESA, 1993) South Africa. Multi-Party Negotiating Process. Plenary Session
The document pack consists of four volumes. Volume 1 contains guidelines and rules for the Plenary, as well as descriptions of Bills already approved. Also contained in this volume are the following documents: The Bilateral Understanding on Outstanding Constitutional Issues Between the South African Government and the African National Congress, the System for the Election of the National Assembly and SPL , and Provisions Which Will be Included Elsewhere in the Constitution. Volume two contains breakdowns of the following Bills: The Transitional Executive Council Bill, The Independent Electoral Commission Bill, The Independent Media Commission Bill and the Independent Broadcasting Authority Bill. Volume three contains the report from the Commission on Regions/States/Provinces, as well as the reports of the Commission on National Symbols and the Task Group on the Identification and Repeal of Legislation Impeding Free Political Activity. The volume also contains a list of contributors to the Multi-Party Negotiating Process, as well as the schedule for the meetings of the Negotiating Forum, Negotiating Council and Planning Committee . There is also a list of participants from Foreign Missions. Volume four contains the 1993 draft of the Constitution of the Republic of South Africa.
Supplementary reports
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Technical Committee on Constitutional Issues
This document contains four supplementary reports which the Technical Committee on Constitutional Issues submitted to the Negotiating Council. The contents of these reports consists mainly of amendments of sections of the Committee’s original reports on draft constitutional principles . The first supplementary report deals with issues contained in paragraph 2 of the Technical Committee’s third report, which were referred back to the Committee for reformulation. The second supplementary report contains responses to a number of issues raised by the Negotiating Council in response to paragraphs 2 and 3 of the Committee’s third report. Where issues were raised, the Committee identified them and made the necessary recommendations for the finalization of the relevant constitutional principles. The issues raised mainly centered around the wording of the principles regarding the status of indigenous laws and traditional leadership, and the fiscal powers and functions of different levels of government. The third supplementary report deals with the issues which were raised when the constitutional principles were revisited during a debate in the Negotiating Council. Once again, where issues were raised, they were identified and the necessary amendments were made. The fourth supplementary report deals with outstanding matters, and with certain typographical and grammatical errors in the constitutional principles adopted by the Negotiating Forum
First report of the Ad Hoc Committee on Sufficient Consensus
(CODESA, 1993) South Africa. Multi-Party Negotiating Process. Negotiating Council. Ad Hoc Committee on Sufficient Consensus.
This report contains the recommendations of the Ad Hoc Committee on Sufficient Consensus: The issue of sufficient consensus was discussed in the Negotiating Council on 18th June, 1993. The matter was referred to the Planning Committee for consideration. On the recommendation of the Planning Committee, the Negotiating Council established an Ad Hoc Committee on Sufficient Consensus, consisting of 5 members. They were assisted by the Sub-Committee of the Planning Committee, consisting of 3 members. The Ad Hoc Committee had two discussions. The first was on the 24th June 1993, and the second was on 20th July, 1993. The Committee identified the following issues: The application of sufficient consensus as opposed to the formulation of the Standing Rules; the need to explore the concept of insufficient consensus; the problem of filibustering ; the need for systematic procedures/guidelines for the Chairperson. The Committee recommended that the Standing Rules for the meetings of the Negotiating Forum and the Negotiating Council should remain as they were, and that a set of guidelines should be formulated to facilitate the application of the Rules. The Committee recommended that participants to the Negotiating Council should try to create a constructive negotiating spirit. This would help to avoid “filibustering” or “majoritarianism: The Committee made recommendations on procedural guidelines for the Chairperson, and suggested mechanisms which the Chair could use to counter “filibustering”, and maximise consensus. Finally, the Committee suggested that in order to ensure that good progress was made in the negotiating process, clear time frames would have to be stipulated by the Negotiating Council in respect of any mechanisms employed.
Independent Electoral Commission Bill : drafts
(1993) South Africa Negotiating Council of the Multi-Party Negotiating Process. Technical Committee on an Independent Electoral Commission.
The Independent Electoral Commission Bill was drafted six times before it was finally accepted. The aim of the Bill was to provide for the establishment of the Independent Electoral Commission. The Commission would be responsible for ensuring that elections were conducted in a free and fair manner. Draft one was tabled at a meeting of the Negotiating Council on 21 May 1993. The draft was compiled by three members of the Technical Committee – Mr R B Rosenthal, Prof. D. Davis and Adv. H. R. Laubscher. The second draft expanded on the functions and duties of the Independent Electoral Commission and noted that the Act would possibly have to be amended to accommodate the redrafting of the existing Electoral Act. The third draft of the Bill contains a large number of textual changes, accompanied by footnotes to explain the changes. The purpose of the fourth draft was to formulate the Bill into a document suitable for presentation to Parliament. The Report of the Ad Hoc Committee on the Independent Electoral Commision Bill contains draft 5 of the Bill, as well as an explanatory memorandum, which states that all differences which had arisen during debates had been resolved. Added phrases and clauses are highlighted in bold type. Draft six is the final draft.
Ninth report of the Technical Committee on Constitutional Issues to the Negotiating Council ,10th August 1993
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Technical Committee on Constitutional Issues
The ninth report of the Technical Committee on Constitutional Issues contains a draft outline of the Constitution for the transitional period.
Reports of the Technical Committee on the Repeal or Amendment of Legislation Impeding Free Political Activity and Discriminatory Legislation
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Technical Committee on the Repeal or Amendment of Legislation Impeding Free Political Activity and Discriminatory Legislation
The Technical Committee on the Repeal of Discriminatory Legislation was tasked with investigating discriminatory legislation which impeded free political activity. This included discriminatory laws which constituted the foundations of political apartheid, laws which were inherently discriminatory, and laws which impeded free and fair elections. The Committee was asked to prepare a report which would include a schedule dealing with laws to be repealed and laws to be amended. The Committee was also tasked with preparing a “Higher Code”. The purpose of the Code was to serve as a “higher law” to be used for judging all Acts that could impede free and fair elections. This document contains 3 reports of the Committee. The first report dated 13th May, 1993, contains the Committee’s proposals for accomplishing its tasks, as well as the principles and powers to be contained in the “Higher Code”. The final report of 1st June, 1993, contains a list of discriminatory laws, as well as the “Higher Code”. Annexure B contains Government Gazette no. 14591 of 19th February 1993, which consists of draft Bills. Annexure C contains submissions from various political parties on the repeal of discriminatory legislation. The third report of 15th July, 1993, to the Negotiating Council, contains the outcome of the Committee’s meetings with the Transitional Executive Council, the Independent Electoral Commission, and the Committee for Fundamental Rights during Transition.
Reports.
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Commission on National Symbols.
The Commission on National Symbols was appointed by the Negotiating Council on 7th September 1993. It was impressed upon members of the Commission that they would be addressing an extremely emotional issue that would have to be dealt with with the utmost sensitivity. Proposals for a national flag, a coat of arms, a seal and an anthem for the transitional period were to be requested from all interested parties. Letters were sent to universities, technicons and 24, 000 schools, with the aim of achieving maximum participation. The Commission was given only six weeks to achieve its goals. Artists had barely a month to prepare submissions. Despite this, 81 designs for a national coat of arms and seal were received, and there were 7 000 submissions for the national flag. There were 120 submissions on the national anthem. The Commission recommended that the anthem should express and promote national unity. It was therefore proposed that the music of Nkosi Sikelel’I Africa and Die Stem van Suid Afrika be considered as dual anthems for the transitional period. The Commission submitted its report to the Negotiating Council on 19th October, 1993. The Negotiating Council decided not to make a decision regarding the flag, due to the sensitivity of the matter. The Council recommended that the Heraldry Council should be consulted regarding this issue. It was decided that the existing coat of arms should remain for the transitional period. The issue of the national anthem, being a highly emotive one, was to be referred to bilateral meetings.
Survey of available information on the criteria for the demarcation of regions
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Commission on the Demarcation/Delimitation of States/Provinces/Regions
The Commission on the Demarcation/Delimitation of Regions undertook a survey of the information pertaining to the demarcation of regions, including where such information was located and in what form it was available. Using designated criteria for the demarcation of regions as the terms of reference, the Commission was able to identify the types of information that might be needed. The survey was preliminary in nature, and was therefore not comprehensive. The categories of information collected were grouped into the following topics: 1. Socio-economic/development 2. Physical infrastructure 3. Social infrastructure (Health, Education and Welfare) 4. Institutional and administrative capacity 5. Finances, including income and expenditures of TBVC, SGT and regional governments 6. Maps of boundaries (i.e. provincial, magisterial, district and RCS boundaries). Information and data published in articles, institutional documents and statistical reports are included in the survey. The survey also includes a development information framework document, which was provided by the Development Bank of Southern Africa's Centre for Information Analysis. In addition to this, the Department of National Health and Population Development provided a document on health trends in South Africa.
Constitution of the Republic of South Africa : draft outlines
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Technical Committee on Constitutional Issues
The purpose of the draft Constitution was to introduce a new Constitution for the Republic of South Africa. It was endorsed by the last Apartheid parliament and became the Constitution of the Republic of South Africa Act 2000 of 1993. It was intended to provide a bridge between the past and the future, and provided the legal foundation for the continued existence of South Africa. It contains the Bill of Rights, and outlines civil and political rights. It also deals with the limitations of those rights. Conditions for amendments to the Constitution are also dealt with. In addition, it defines the structure of government and lays out parliamentary procedures. It defines the powers of the judiciary and outlines the powers and functions of the public service and the police and defence force.
Submissions received
(CODESA, 1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Commission on the Demarcation/Delimitation of States/Provinces/Regions
These documents contain submissions from individuals, traditional leaders, political parties, municipalities and NGOs regarding the division of South Africa into regions. Many of them contain maps illustrating the proposed regions. The submissions are broken down into categories, which unfortunately exclude submissions from individuals: Technocratic submissions. These submissions present scenarios based solely on technical criteria, such as water supply, telecommunications, electricity, policing, etc. They contain no references to political criteria such as legitimacy. None of these submissions recommend that further consultation might be necessary. Right Wing submissions. There are 4 submissions in this category. All of them refer to specific regions which they claim as a “volkstaat”. They all propose different regions for a “volkstaat”. Only one of the submissions makes reference to mechanisms for grassroots consultation among Afrikaners regarding regional boundaries. National Political Actors. There are 8 submissions in this category from political parties. Some of the parties suggested that further consultation was needed. Political actors such as the Transkei, Ciskei and Bophutatswana produced regionally specific, rather than national maps. Others. These include submissions from various organization such as SACOB, DBSA, Free Market Foundation, NAFCOC, etc.
Reports 12 to 27 of the Technical Committee on Constitutional Issues
(1993) South Africa. Negotiating Council of the Multi-Party Negotiating Process. Technical Committee on Constitutional Issues
This volume contains reports 12-27 of the Technical Committee on Constitutional Issues, and deals with a wide range of constitutional issues: Report 12 deals with the structure and functioning of the courts in the new South Africa. The 13th report deals with local government and outstanding matters requiring the urgent attention of the Negotiating Council. Report 14 deals with the office of the Ombudsman and the Human Rights Commission. The 15th report presents proposals for provisions relating to the establishment of a Commission for Administration and the Public Service. Report 16 deals with the procedure for the election of the President of the Republic of South Africa. The 17th report deals with issues related to finance. It deals with the transfer of assets and liabilities from the existing administration to the new administration. Provision also had to be made for the operation of a national revenue account, the control of state expenditure, the appointment of an independent Auditor General and the establishment of the Fiscal and Financial Commission. Report 18 deals with issues regarding the establishment of provinces and provincial legislatures. Report 19 deals with the executive powers of the Republic, such as the election, powers and functions of the President, as well as the accountability of ministers and the Cabinet. Report 20 deals with the establishment, status and financing of local government. Report 21 contains constitutional principles as they were presented to the Negotiating Council in the draft outline of the Constitution on 20th August 1993. Report 22 covers procurement procedures, the disqualification of members of Parliament, the vesting of property, the National Revenue Fund, and the powers of the Auditor General and the Reserve Bank. Report 23 contains part of the draft Constitution relating to the Public Protector, the Human Rights Commission, the Auditor General, the South African Reserve Bank, the Financial and Fiscal Commission, the Public Service Commission and the Public Service. Report 24 is a preliminary draft of chapter 10 of the Constitution which deals with traditional authorities and local government. Report 25 contains a draft of chapter 7 of the Constitution dealing with the judiciary, local government and a new chapter on local authorities. The 26th report contains a draft of chapters 1-2 and schedule 7 of the Constitution dealing with formal and constituent provisions, citizenship and the franchise and Constitutional principles. Report 27 contains a draft of chapters 13 and 14 of the Constitution, dealing with the South African police force, the establishment of a national defence force and general and transitional provisions.

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