Item 1142 - Keynote address of Nelson Mandela President of the African National Congress to Lawyers for Human Rights Conference

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ZA COM MR-S-1142


Keynote address of Nelson Mandela President of the African National Congress to Lawyers for Human Rights Conference


  • 1991-07-13 (Creation)

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Transcription of speech made by Mr Mandela

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(18 July 1918-5 December 2013)

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Migrated from the Nelson Mandela Speeches Database (Sep-2018).

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ANC Archives, Office of the ANC President, Nelson Mandela Papers, University of Fort Hare

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  • English

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Chairperson, Friends

I am honoured to be invited to address you. The role of Lawyers for Human Rights has been one of considerable significance to our country. In a state where human rights violations on a massive scale has been the norm, the formation of any organisation devoted to protection of freedom is always significant.

The role of LHR has been particularly important, drawing on the expertise of the legal profession to challenge the denial of human rights generally and combating further attempts to limit people’s freedom.

We recognise and value the independence of LHR, but we also believe we have goals in common and this common perspective is one that must be built on. Along with LHR we strive for a democratic constitution, a justiciable bill of rights, and independent judiciary and regular elections.

We need to work together for the realisation of these and other just demands. It is my hope, also, that we can develop broader agreement, in particular, over the type of constitution we want and the process leading to the adoption of a democratic constitution.

Let me restate our position briefly. The ANC seeks a democratic process and a democratic result. The constitution that emerges should meet the longing for freedom of the millions of people who have thus far had no part in decisions affecting their own lives.

This constitution should also conform to universally accepted human rights norms, found for example in the Universal Declaration of Human Rights, various other United Nation human rights covenants and declarations, the Freedom Charter and our own more recent constitutional formulations, to which I will refer later.

We consider that it is not sufficient for the constitution that emerges to correspond to our goals alone. It should also be the product of mass participation, - ordinary people should feel that they have, themselves, had a hand in making it.

This was the case with the Freedom Charter, the content of which derived from the contributions of ordinary people throughout the country. As many will recall, the creation of the Charter was preceded by many months of consultation with people throughout the country. Their grievances and aspirations were meticulously recorded by themselves and organisers, often on little scraps of paper which all contributed to the final formulation.

Because of this process the Charter was guaranteed popular acceptance. The people in a sense wrote the Charter.

Because we want a new constitution to enjoy similar legitimacy we insist that it should emerge from a democratic process. We cannot think of a more democratic way than its formulation through an elected Constituent Assembly.

In such an assembly organisations would be represented in accordance with their electoral support determined by proportional representation. This takes account of the extent of support enjoyed. But even those enjoying limited support can also play a significant role.

The ANC is not seeking an ANC constitution, but a South African constitution that enjoys the respect and loyalty of all patriotic South Africans. That is why we want to engage with LHR, hear what you say and learn from your expertise and commitment. We want a constitution that is enduring and does not leave significant sectors of our community dissatisfied.

To make this process of popular constitution-making meaningful, it is insufficient for people to merely vote for the organisations that they support. They must vote on the basis of some understanding of what their representatives are going to do and what they want them to do in regard to constitution-making.

That is why we are very keen to see the debate over a future constitution become one in which not only experts participate but also ordinary South Africans from all walks of life and from all parts of the country. That is why we consider the draft bill of rights and constitutional principles developed by the ANC constitutional committee to be important guidelines for this debate.

We need these principles to be discussed inside and outside the ANC so that we can benefit from the insights of others, so that organisations like yours can assist us in arriving at the most appropriate routes to securing our constitutional goals.

We do not want to use an electoral majority to force a constitution down people’s throats. The ANC has not yet taken a position on how decisions should be arrived at in the Constituent Assembly. But I am of the view that we need to consider a qualified majority, say two-thirds, so that organisations with limited support do not see the Constituent Assembly merely as a rubber stamp for those holding a majority and that they too can make some significant contribution.

Let me also restate how we see the process unfolding.

Our view is that there is not yet a climate for negotiations. There are still obstacles in the way of proper constitutional negotiations that first need to be removed before these can happen. As is well known, this includes the release of prisoners and the return of exiles.

It also demands, as a national priority, that there is an end to the current reign of terror against black communities in the PWV Area and Natal. This is not just an ANC demand but a DEM and of the people as a whole. We believe it is well within the capacity of this government to achieve this and we also believe that it is essential to force the government to meet its responsibilities.

Once these obstacles are removed we want urgently to meet with other players at an All-Party conference. Here we wish to achieve:
-agreement on the principles that should form the basis for a new democratic constitution
-agreement on the process leading to the creation of such a constitution, including the establishment of an Interim Government.

We demand an Interim Government to oversee the transition because we believe, and it has been demonstrated that it is not viable or justifiable to have one party acting both as player and referee. The Nationalist Party has definite negotiating goals in this process. It cannot be allowed to use its powers as a government to damage the standing and operation of other organisations.

If the NP were not government and player we would not have seen them breaking with impunity their obligations under the Pretoria and Groote Schuur Minutes. Had there been a more legitimate government we would, we believe, have seen some genuine and substantial attempt to deal with the violence.

The Interim Government would be created to oversee the process of transition to a democratic order. It will be responsible for ensuring that a climate for freedom of political activity is created and maintained. It will supervise elections for a Constituent Assembly. It will remove any discriminatory laws and security laws that might remain.

The Interim Government would have to ensure that the Security Forces operate in a manner that facilitates the fulfilment of this process, rather than being an obstacle to the achievement of democracy. It might be desirable to have the Security Forces and all political actors operate within the framework of an interim bill of rights which could be negotiated in the ANC.

We envisage that the Interim Government would be a sovereign body. The existing government would dissolve. How would such a government be composed? Our view is that it should comprise the major players, but who the major players are is obviously a matter of contention. The ANC’s view alone cannot determine this issue. It would, we hope, be settled through negotiation in the APC.

It seems that without the benefit of an election one could stake a claim for the inclusion of ANC and NP on the basis of representativity. The inclusion of the ANC would make this the most legitimate government the South African state has ever seen.

The inclusion or exclusion of other organisations or parties would best be decided, in my view, by considerations such as effectivity and legitimacy. Would the Interim Government be more or less legitimate by the inclusion or exclusion of certain organisations? Would some organisations destabilise the process by inclusion or by exclusion?

We believe that an Interim Government must necessarily be of short duration. It would not be a government with a mandate going beyond its brief to oversee the transition. It would not be able to implement radical social changes. It should complete its work as quickly as possible, since the establishment of a democratic constitution is a condition for peace.

The alternatives to a Constituent Assembly and Interim Government are ones aimed at limiting democratic participation. Against the Constituent Assembly two main alternatives are offered:

First, a constitution made by some such body as the APC. But the APC or Multiparty Conference is not a representative body and we believe that some account must be taken of the amount of support that an organisation enjoys. We are willing to compromise. But why should we seek consensus with parties that enjoy no support whatsoever such as Gogtya’s Fida? Our compromises must be dictated by the desire for peace and justice, not by the way in which the negotiation process may be set up.

Another alternative is a deal between ourselves and the government. There is said to be a ‘special chemistry’ between myself and President De Klerk. Flowing from this chemistry it may be that a splendid constitution can emerge. In other words we could strike a deal and then present this to our members and supporters for ratification.

That too is unacceptable. We want to empower people, to have them make their own victories and not have leaders do this on their behalf. The role of the people must go beyond saying yes or no to the result of deliberations between party leaders.

Against the Interim Government one has suggestions of a supercabinet or the involvement of various organisations presently outside of government having some role, as Cabinet Ministers, in the process of transition. In other words, the existing government structure remains and we come into it to make things run more smoothly. Politely phrased, this is cooption. We reject any situation in which we may take responsibility for the acts of a government where we have not exercised authority ourselves.

Our preferred course is governed by the desire to really let the people speak, to see democracy in action. This is something considered completely acceptable throughout the world. We believe it si necessary in South Africa as well.

But what of our constitutional vision? Our recently completed National Conference adopted as guidelines the Constitutional Committee’s Constitutional Principles and Structures for a Democratic South Africa and its Bill of Rights for a New South Africa. These documents derive, basically, from our Freedom Charter whose fundamental principles are representative democracy, nonracialism and nondiscrimination.

The document of constitutional principles explains very clearly that it is being issued in order to widen the constitutional debate:

Discussion on all constitutional issues must take place now to ensure that representatives to a constituent assembly are fully informed and mandated, and that popular participation in constitution- making is real. To postpone discussion on all these important issues until a Constituent Assembly is convened, will in reality mean that people would not be participating in the process.

In addition, unlike the Namibian situation where constitutional principles were imposed by the contact group and the Constituent Assembly was bound to work within the framework of those principles, the document argues that:

We need to ensure that principles are not imposed upon our people but arise as a result of popular participation.

At the outset and in line with principles of international law respecting territorial integrity, we speak of a united South Africa unfragmented by artificially created entities, such as Transkei, Ciskei, Venda and Boputhatswana.

‘We envisage’ in the words of the Constitutional Committee, ‘a single citizenship, nation and a common loyalty. We speak many languages, have different origins and varied beliefs, but we are all South Africans.’

But within this single citizenship, we recognize the distinct identities of various segments of our population, having their specific cultures, languages and religious persuasions. We have no intention of suppressing these. In fact we commit ourselves to enriching the future South African nation by encouraging the development of all that is best in the cultures of our various people. Article 5(11) of the draft bill of rights reads:

‘Sporting, recreational and cultural activities shall be encouraged on a non-racial basis, drawing on the talents and creative capacities of all South Africans…’

Regarding the languages of the country, the draft declares:

‘The state shall act positively to further the development of these languages, especially in education, literature and the media, and to prevent the use of any language or languages form the purpose of domination or division.’

Reflected here is our concern that legitimate cultural, linguistic and religious rights should find full expression. At the same time, we will not allow such ethnic or other identities to be the basis for allocating political rights or privileges.

There is no reason for anyone to fear for their future in a democratic South Africa, unless it is democracy that they fear. Naturally a result that is something less than democratic is unacceptable to us, and that position we believe is reasonable.

The ANC looks forward to the future with confidence. We have just completed a conference which has charted our way forward with clarity. We have elected a new leadership that I believe combines the qualities that will enable us to take a substantial step forward towards the realization of our ideals, which are fundamentally those we hold in common with LHR.

South Africans long for peace. Most South Africans know and understand that freedom must come. The sooner it comes, the sooner there will be peace. We value our links with Lawyers for Human Rights and look forward to working together with you in the period ahead, leading to a democratic constitution. We also look forward to that collaboration continuing in a new South African where our hard won freedom will have to be defended. We count you amongst our most valued friends. Let us strengthen that friendship on the basis of our shared commitment to all that is most needed in our country, to the democratic values that we hold dear.

Thank you.

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Acquisition method: Hardcopy ; Source: ANC Archives, Office of the ANC President, Nelson Mandela Papers, University of Fort Hare. Accessioned on 18/01/2010 by Zintle Bambata




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