THE IMPORTANCE OF RESPECTING MINORITY RIGHTS AND THE SOVEREIGNTY CLAUSE
Dr PIETER MULDER
“Do you speak South African?” an American journalist asked me during the 1993 negotiations. He arrived in South Africa in the morning and clearly did not do his homework on the country.
When I explained that Afrikaans was my first language and that my ancestors had arrived here in 1685, long before the majority of Americans had arrived in the USA, his next question was: “The French speak French and the Germans speak German, so how many people in South Africa speak South African?”
During the negotiations in 1995, the Constitutional Assembly had an advertisement that read as follows:
“South Africa: 20 million women; 18 million men; 8 religions; 25 church groups; 31 cultural groups; 14 languages; 9 racial groups; 1 country.”
So many different identities in a single country.
Potential for conflict in South Africa
In 1993, while South Africa was busy with negotiations, Ted Gurr and his collaborators found that in the post-Cold War era, community conflicts emerged as the single most serious threat to peace.
Of the twenty-seven notable conflicts that afflicted the world at that time, twenty five were within countries and between communities — not between countries. With the end of the Cold War, the politics of ideology mostly came to an end and was replaced by the politics of identity.
The previous Secretary General of the United Nations, Mr Boutros Boutros-Ghali, said: “ethnic conflict poses as great a danger to common world security as did the Cold War.” He added: “No country today, and particularly multi-ethnic countries, can afford to ignore ethnic conflict”.
As it became clear that the political situation in South Africa was changing in the 1990’s, we made an in-depth study of situations in the world where problems, similar to South Africa’s, were evident. We concentrated specifically on countries with diverse populations and ethnic, cultural and language problems.
The civil war between Eritrea and Ethiopia was brought about by ethnic and cultural differences. In his book Clash of Civilizations, Samuel Huntington states that ethnic and cultural differences are the main cause for conflict in the world in the post-Cold War era.
Exactly while we were busy with negotiations and had the 1994 elections in South Africa this reality was cruelly emphasised as Hutus slaughtered 800 000 Tutsis in Burundi.
In Belgium, differences with regard to language led to conflict between the Francophone and the Flemish-speaking inhabitants. There was also conflict between Francophone and Anglophone communities in Canada.
Religious differences led to conflict in North Ireland.
Despite the USA’s modern constitution and approach to human rights, racially-based unrests are common.
The conflicts in the abovementioned examples were caused by a single difference, but in South Africa, we have all of these differences in a single country – differences with regard to religion, language, race, income, ethnicity and culture, and many more. Within this context, it is apt to conclude that South Africa has a much greater chance for conflict when compared to most other countries.
One of the definitions of politics is that it aims to manage differences.
Liberal democracy is the most popular democratic model in the world today. The West easily markets it as the only democratic model available and subsequently exports it to Iraq and every other African State.
In a simplistic liberal democratic model, like the one offered to Africa by the West, 51% of the population imposes its will on the other 49% of the same population. In a homogenous State, where governments replace one another regularly, this may be tolerated.
In the typically heterogeneous States found in Africa, however, this is a recipe for conflict and instability. The history of Africa proves this. The opposition, which usually has specific ethnic or language loyalties, does not experience this model as being democratic, but rather as permanent oppression and domination. This consequently leads to resistance and subversion.
This simplistic model against which African States are presently being measured, is not used in all Western States. In 1992, when South Africa’s negotiations started, Switzerland, Belgium and Spain had already refined and adapted their political models to federations with autonomous regions that have different levels of self-determination for the various groups within their States.
Ethiopia did the same. The Ethiopian constitution that came into operation in 1995, established a federation comprised of nine ethnic-linguistic States and two federal States.
In 1960, Nigeria started off with three regions, not long after that, it had twelve federal States and today Nigeria is a federal republic, divided into thirty-six States.
There are many examples of advanced democratic models that replaced the simplistic liberal democracy by the time that our negotiations in South Africa started. Participatory democracy or radical democracy follow on liberal democracy. This allows for the acknowledgement and empowerment, not only of individuals, but also of communities. The true culture of democracy surely lies within the spirit of participation. Where the basis of individual rights is enshrined in human dignity, the basis for community rights is found in the acknowledgement of this reality.
The conclusion of our in-depth study was that different levels of self-determination, federalism, autonomy and group or minority rights were the solutions to the problems that the countries we investigated had in common with South Africa. The United Nations documents and the European Parliaments’ conventions offer the same solutions to these problems.
2 February 1990 and Negotiations
2 February 1990: The African National Congress (ANC) was unbanned and the release of Nelson Mandela was announced. In his speech to parliament, President FW De Klerk said that “the time to negotiate has arrived”.
17 March 1992: Mr De Klerk of the National Party (NP) asked white voters for a mandate for the negotiations by means of a referendum. Unfortunately, the question of the referendum was very vague. It read:
“Do you support continuation of the reform process which the State President began on 2 February 1990 and which is aimed at a new Constitution through negotiation?
As expected, the majority of the voters were not opposed to negotiations and peaceable solutions. They wanted to vote “Yes”. What was, however, misleading and what the people consequently enquired and argued about was the content of the said mandate.
The National Party’s advertisements and speeches on the referendum indicated that the content of the mandate was based on the “distribution of power”, “group rights” and the “protection of minorities”, as contained in the 1989 Election Manifesto of the NP. If you were opposed to “majority government,” you had to vote “Yes” according to the NP’s newspaper advertisements the day before the referendum.
After the referendum, at Codesa, it became apparent to voters that the NP negotiators had changed their mind and that group rights were no longer their point of departure. After the summit, Mr Roelf Meyer admitted in North Ireland that he was no longer thinking in terms of groups.
19 May 1993: In reaction to this, twenty one Afrikaner organisations got together and founded the Afrikaner Volksfront (AVF). General Constand Viljoen and four other generals were asked to form a directorate in order to provide the AVF with strategic leadership.
The strategic leadership rested on two pillars:
- A political strategy that entailed participating in the negotiations in order to table self-determination and minority or group rights. In preparation for the negotiations, a visit was paid to, amongst others, the High Commissioner on National Minorities in The Hague.
- A military strategy that entailed the training and mobilisation of a military force, with the option of taking military action if negotiations became deadlocked and there was no other way to resolve the matter. This strategy should not be confused with the amateur and semi-militant efforts of the Afrikaner Weerstandsbeweging (AWB).
As it became clear that the strategy of the ANC and NP was to first reach agreements on a bilateral basis before going to other parties for multilateral negotiations, a multi-racial alliance, the Concerned South Africans Group (COSAG), was formed between the AVF, the Inkatha Freedom Party (IFP), the Bophuthatswana Tshwane Government and the Ciskei Xhosa Government.
On the “character of the State”, the COSAG Alliance partners broadly agreed on a more confederal or federal approach with the distribution of power. It was based on subsidiarity, the principle of devolving decisions to the lowest practical level. The premise was that a function that could be fulfilled by a lesser structure of society should not be handled by a superior structure. In this way, subsidiarity aims to ensure that decisions are taken as closely as possible to the citizen. At the same time, it addresses the realities of South Africa’s diverse population and their different interests.
August 1993: When no progress was made with this in the negotiations, the AVF, the IFP and a few other parties quit the Kempton Park negotiations. After that, the AVF negotiated separately with a team from the ANC. The ANC team was headed by Thabo Mbeki and included Essop Pahad, Penuell Maduna, Jacob Zuma, Thozamile Botha and Joe Nhlanhla.
Between August and December 1993, the parties exchanged working documents and the negotiating teams met regularly for talks. Both the AVF and the IFP were of the opinion that it was senseless to participate in the 1994 elections as their requests were not being accommodated.
The interim Constitution comprised of thirty-three principles that were to be used as guidelines for the new Constitution, which had to be negotiated and agreed upon after the elections. New matters that were not already contained in the thirty-three principles, would not form part of the new Constitution.
The climate of violence, from all sides, did not make negotiations easy. It included incidents like the St James bloodbath where eleven people were shot dead and fifty-eight were wounded in an attack in a church in Cape Town as well as the murder of Chris Hani.
In the ranks of the AVF, there was a constant and serious debate between those that preferred the option to negotiate and those that supported the option of taking military action. During their negotiations with Mbeki’s ANC team and the NP, the AVF negotiators insisted on adding a thirty-fourth principle of self-determination to the interim Constitution. The idea was to ensure that self-determination would be part of the Constitution. We believed that would have made military action redundant.
Principle XXXIV on self-determination was agreed upon at the last minute, but it was vital. It laid the foundation for what most probably averted a civil war at the time.
The AVF’s mistrust and dissatisfaction with the negotiations increased. The way in which “sufficient consensus” was used during the multiparty negotiations basically meant that if the ANC and the NP agreed, the other 25 parties simply had to go along. This intensified the parties’ mistrust of the process.
The one-sided decision of the NP and the ANC to set 27 April 1994 as the election date, even before all the parties could agree on numerous fundamental issues, was the last nail in the coffin and the AVF lost all its faith in the negotiation process. The call for war instead of negotiations grew louder at every AVF meeting.
We insisted that the NP, Mbeki’s ANC team and the AVF write up and sign an Accord stipulating and confirming what the parties agreed upon during their negotiations. It was also supposed to specify the conditions on which the AVF would participate in the elections.
11 February 1994: Differences within the AVF regarding the best strategic option caused the party to split. The AVF decided not to participate in the elections. Being negotiators, we were consequently kicked out of the AVF. We received various death threats.
4 March 1994: The Freedom Front was founded as a political party with General Constand Viljoen as its leader. The party aimed to participate in the elections on the conditions stipulated in the Accord, if it was signed in time. In this way, we planned to continue with negotiations after the elections.
23 April 1994: The Accord on Afrikaner Self-Determination was signed. In the Accord, the Freedom Front, the ANC and the South African Government/NP agreed to address, through negotiations, the idea of Afrikaner self-determination and such negotiations would not exclude the possibility of local and/or regional and other forms of expression of such self-determination.
27 April 1994 Elections: Twenty-seven political parties participated in the Kempton Park negotiations. Nineteen parties participated in the elections of 27 April 1994 and only seven reached Parliament. The Freedom Front, with barely one month to canvass, obtained the fourth-highest number of votes in the election after the ANC, the NP and the IFP.
The Accord stipulated that the Freedom Front had to have proven support in the provincial elections. The Freedom Front got 640 000 votes and it was deemed proven support, which made continued negotiations on self-determination and minority rights possible and it also paved the way for further negotiations.
The Freedom Front participated in the constitutional process and focused specifically on the inclusion of the principles of self-determination and minority rights in the Constitution.
This resulted in the Freedom Front playing a key role in the inclusion of the following articles in the new Constitution of the Republic of South Africa (Act 108 of 1996):
- Section 235, which refers to the notion of territorial self-determination.
Since the preconditions contained in the constitutional principle XXXIV were met and complied with according to the Constitutional Court, section 235 was incorporated in the final Constitution. It reads:
“The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.”
- Section 185, which provides for a Commission for the Promotion and Protection of the Rights of Cultural, Religious and Language Communities.
This was a step in the right direction for minority rights, but it was difficult to negotiate. The ANC opposed this and often quoted from the Freedom Charter to argue their position. However, the third part of the Charter was never quoted. As a result, we made use of it as it states:
“All National Groups shall have Equal Rights!”
“There shall be equal status in the bodies of State, in the courts and in the schools for all national groups and races;
“All people shall have equal right to use their own languages, and to develop their own folk culture and customs;
“All national groups shall be protected by law against insults to their race and national pride.”
- Sections 30 and 31, which recognise rights for language and cultural communities.
Whereas individual human rights were emphasised at the end of the Second World War, by the end of the previous century, the concept had been developed and expanded to include minority rights. Today, minority rights, as applicable to ethnic, religious or linguistic minorities and indigenous peoples, form an integral part of international human rights law.
Subsequent human rights standards that codify minority rights include the International Covenant on Civil and Political Rights (1966); the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992); two Council of Europe treaties (the Framework Convention for the Protection of National Minorities (1995) and the European Charter for Regional or Minority Languages (1992); the Organisation for Security and Co-operation in Europe (OSCE) Copenhagen Document of 1990; to name but a few.
In our negotiations, we used and copied article 27 of the International Covenant on Civil and Political Rights. It reads:
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
Section 31 of the 1996 South African Constitution states that: “Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practise their religion and use their language; and to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.”
Although the Freedom Front succeeded in having the abovementioned Sections included in the Constitution, the modern interpretation of self-determination and minority rights, according to present international law, is still not met. The Freedom Front sees the Constitution as a point of departure for moving towards these ideals.
The Situation today sets alarm bells ringing
- Radicalisation and skewed/twisted perceptions
In 1996, the negotiators were united in their motivation to find win-win solutions that would accommodate everyone in South Africa – leading to positive debates.
Therefore, the atmosphere was totally different from what we experience in Parliament today (2017). The 1996 negotiations on the Constitution entailed daily discussions and debates – mostly in small groups where South Africa’s future, and our take on it, was discussed.
We were compelled to listen to each other and had to try and understand the other person’s viewpoints – whether you agreed or not.
What did I learn during those days? I learnt that I do not mind being criticised for what I believe in, but do not criticise me for what you think I believe. I miss this in our present parliament. Nowadays we have debates on our skewed/twisted perceptions of one another, without really trying to understand what exactly the other side believes or is trying to say.
In 1996, the political keywords were “agreement” and “settlement” between the various groups. At present, we only hear of the “triumph of one group over the other”, specifically from the mouths of the youth that had not even been born in 1990.
In a Truth Commission session on 14 October 1997, Leon Wessels said: “…others are still learning the Chris Hani truism once expressed to me – ‘We (the ANC) concede the fact that we never broke the back of the South African Defence Force and South African Police, but you must concede the fact that you never broke the spirit of liberation in the townships’”.
In 1996, “compromises” were sought. At present, the slogan is: “We have the answers and we know best”. If you do not go along, you are unpatriotic and probably racist.
In 1996, there was talk of the “rainbow nation”; now we only hear of “black and white”.
The result of all of this?
In a reconciliatory climate, both sides can acknowledge their mistakes and make concessions. In an accusatory climate, however, groups move away from each other and intensify their opposing viewpoints. All of this inevitably leads to greater polarisation, which automatically results in each side holding more radical views.
There are radical opinions in all communities. Mostly, however, only a minority supports these radical viewpoints. A minority viewpoint should not unnecessarily be given status.
When is a community in trouble? A community is in trouble when these radical minority viewpoints become the viewpoint of the majority of the community.
How do we prevent this? This can be prevented by leaders setting the right example. The leaders of all the groups must address the problem and in so doing, create a climate different from the current one.
It can be done with wise and courageous leaders – And such leaders exist.
- Nation Building recipe
Do we have the right recipe for nation building in South Africa? One cannot stumble from one international sporting event to the next and then call it nation building.
Nation building is always difficult. In some countries it is easier because most of the people in the country speak the same language and share the same culture.
When the European countries divided Africa amongst themselves with artificial boundaries, people with different languages were artificially thrown together into one country.
In these African States, there is no single language and culture to form the foundation for nation building. As an alternative, the resistance to the colonial oppressors was used as a nation building recipe. They created a scapegoat.
Because the European “bosses” went back to Europe, it worked well to unite people against them as the common absent enemy.
This African recipe for nation building cannot work in South Africa where Afrikaners and other “whites” and “Asians” are proud to be Africans and part of Africa. President Mandela realised this. That is why he reached out to Afrikaners and others who had no other country to return to. In contrast to this, branding these people as the enemy is a recipe for further division and polarisation. Where we try to resolve conflicts of the past, this only lays the foundation for the next conflict.
I simply ask for the right to be myself in South Africa – without favour, privilege or prejudice. If this is not possible or allowed, then we are in trouble and still have a lot of work to do.
Prof Doehring, of the Max Planck Institute in Germany, summarised their research on this topic as follows: “It is clear that the nations and peoples of Europe do not mind becoming part of the greater European fruit salad, as long as everyone is allowed to retain their identities as if a banana or orange in the fruit salad.”
- Giliomee, Hermann. Die Laaste Afrikaner-leiers. Kaapstad. Tafelberg Uitgewers. 2012.
- Giliomee Hermann. The Afrikaners; Biography of a People. Cape Town, Tafelberg Publishers Limited. 2003.
- Gurr Ted Robert. Minorities at Risk; A Global view of Ethnopolitical Conflicts. USIP Press Books; 1993.
- Huntington, Samual P. The Clash of Civilizations. Foreign Affairs. Council on Foreign Relations. Summer Issue 1993.
- Wessels Leon. My Regte Jou Regte. LAPA Uitgewers. Pretoria. 2006.
Burger. 7 September 2006
Volksblad. 30 Januarie 2001
yellow highlights in text. Author to be requested to provide references for
 Minorities at Risk, a Global view of Ethno Political Conflicts, July 1993. Gurr Ted.
 Statement in opening a seminar on ethnic conflict at National Defense Univesity, Washington DC, 8 November 1993, UN doc. SG/SM/5152 (New York: UN, 1993)
 The Clash of Civilizations. Foreign Affairs; Summer Issue 1993; p22-48. Huntington, Samuel P.
 Giliomee, Hermann. Die Laaste Afrikaner-leiers. Kaapstad. Tafelberg Uitgewers. P.208-209
 Volksblad, 30/1/2001, p.3 and Hermann Giliomee The Afrikaners, Biography of a people, p.639
 Afrikaner Resistance Movement
 Wessels Leon: My Regte Jou Regte, p19; LAPA Uitgewers and Burger 7/9/2006 and Truth and Reconciliation Commission of South Africa 14 Oct 1997 Session; Johannesburg.