Recent developments in Tunisia, Egypt, and increasingly throughout the rest of the Arab world have certainly been encouraging, and they raise the critical question of what happens next. How will these states be able to make the transition from the discredited authoritarian regimes of the old order to the new, democratic systems that people throughout the region are demanding?
The problem is that authoritarian regimes, by definition, do not possess the mechanisms necessary for peaceful democratic transitions. There is generally no constitutional framework for genuine democracy, and political opinion has been repressed for so long that nobody really knows which group or party enjoys genuine support.
The obvious solution is to hold an election - but with which participants, on what basis, and within what constitutional framework?
South Africa’s constitutional negotiations in the early 1990s may provide an instructive example for these new democracies to study. During the South African process, parties with long histories of hostility and suspicion came together and forged a new constitutional system under the most difficult circumstances. The negotiations included both the African National Congress (ANC) led by Nelson Mandela, and its traditional arch-opponent, the ruling National Party, under my leadership. Other participants included the Zulu-based Inkatha Freedom Party (IFP), the South African Communist Party, and parties representing the 10 black “bantustan” governments that had been established under apartheid.
Selecting the players for constitutional debates won’t be quite so easy in Egypt. Change in South Africa had been expected for years. It was a foregone conclusion that the ANC, representing most blacks, would win the first democratic election. In Egypt, however, change came unexpectedly - and nobody knows whether the Muslim Brotherhood, the left, or the present ruling party will emerge as the dominant group. Nonetheless, the South African experience demonstrates the necessity of inclusion.
Despite repeated crises and walkouts, these talks succeeded in producing a nonracial, democratic constitution that is widely regarded as one of the best in the world. How did we do it?
The negotiations had three distinct phases.
The first, preparatory, phase followed my speech to Parliament on Feb. 2, 1990, during which I announced the formal end of the apartheid system and Mandela’s release from prison nine days later. This phase included three preliminary meetings in Cape Town and Pretoria that dealt primarily with granting immunity to ANC rebels to enable them to return from exile and suspend the group’s decades of armed struggle. In Egypt it will also be necessary to determine how previously proscribed groups, like the Muslim Brotherhood, will participate in the transition.
The preparatory talks also dealt with the escalating racial violence that presented a serious obstacle throughout the negotiations. We addressed the problem by adopting a National Peace Accord on Sept. 14, 1991. The accord established a National Peace Secretariat, a National Peace Committee comprising all the accord signatories, and a National Peace Commission under the chairmanship of Judge Richard Goldstone, chief justice of the Supreme Court, to investigate and report on violence and intimidation.
The second phase of the negotiations, the multiparty Convention for a Democratic South Africa (CODESA) talks, commenced on December 21, 1991, with the adoption of a declaration of intent. The declaration sketched the broad outline of the kind of state that all the parties wanted, including: a united, democratic, nonracial and nonsexist political system; a constitution guarded over by an impartial judiciary; a multiparty democracy based on proportional representation; separation of powers with appropriate checks and balances; acknowledgement of South Africa’s diverse languages, cultures, and relations; and a Bill of Rights with equality of all before the law.
The CODESA negotiations dealt with myriad thorny issues, including the creation of a media and political climate to allow free participation, the reincorporation of black homelands, and ensuring free and fair elections. By far the toughest negotiations involved setting up the new constitution. The main problem was the ANC’s insistence that the constitution should be drawn up by a duly elected national convention, while minority parties maintained that agreement on the constitution should precede the first elections. The impasse was resolved toward the end of the process by the ingenious device of adopting an interim constitution under the terms of which the first election would be held. The newly elected Parliament would then adopt a final constitution. To allay minority fears, the final constitution would also have to comply with 35 immutable constitutional principles.
On June 17, 1992, constitutional talks collapsed over failure to reach agreement on the percentages by which the final document would have to be adopted - and because of escalating violence. It was widely suspected that ANC leaders were under pressure from the group’s more radical elements about the concessions they were making during the negotiations. The walkout may have been a means to calm down these aggressive factions so that the process could move forward. I don’t believe ANC leaders ever truly meant to derail the process, though publicly they said they would make the country ungovernable through mass action. Eventually the talks resumed without drastic measures such as imposing martial law, thereby demonstrating the importance of patience, even under the most trying of political deadlocks.
On September 26, 1992, the government and the ANC opened the way to the resumption of negotiations by adopting a “record of understanding” that endorsed most of the agreements that had been reached during the CODESA process. One of the main problems we experienced was maintaining the inclusivity of the process. As soon as the ANC returned to the talks, the IFP and right-wing parties walked out and did not return until the eve of the elections. It will also be essential to ensure that whatever happens in Egypt, the process includes all parties with significant support.
The final phase of the negotiations consisted of a multiparty negotiating process, which reached agreement on an interim constitution and the mechanisms required for free and fair elections. It was agreed that the final constitution would have to be adopted by a two-thirds majority of the newly elected parliament, failing which it would have to be approved by a 60 percent majority in a national referendum. The interim constitution was approved by the negotiating forum on Nov. 18 and adopted by Parliament on December 22. The first national democratic elections took place on April 27, 1994, and ushered in South Africa’s present nonracial constitutional democracy.
The process could not have been a success without a number of key factors. First, the South African political system was operating under a constitution throughout the entire process - whereas the situation in Egypt following former President Hosni Mubarak’s resignation is still unclear. That kind of continuity meant that there was no hiatus in the functioning of the courts, public services, commercial agreements, or property rights.
Second, the process was entirely South African. We did not require the intervention or mediation of any foreign powers - though their support for the process was often invaluable. Homegrown solutions are often more durable than those that are imported or imposed from abroad.
Third, we benefited from the support of outside constitutional advisors, who were often academics and legal experts. All parties welcomed the impartiality of these advisors, enabling them to resolve deadlocks that arose from time to time.
Finally, it helped a great deal to have a man of Nelson Mandela’s stature as a partner in the process. Following the assassination of Chris Hani, leader of the South African Communist Party on April 10, 1993, Mandela played an indispensable role in calming his followers and preventing widespread conflict. Although our relationship was often severely strained, such as when he publicly and wrongly accused me of supporting violence by security forces against unarmed protesters, from the beginning we both believed that there was a basis for trust and productive cooperation. We remain friends to this day. It’s unclear whether there are any leaders of Mandela’s stature within the Egyptian opposition movement, but his would be a fine example to follow.
The current situation in Egypt is, of course, sui generis. It remains to be seen which individuals and parties will emerge as leaders. Clearly, the armed forces will need to play a crucial role in creating and protecting the arena for political transition. But what will happen after that? To the extent that our experience is at all relevant to the historic transformation process under way in the Arab world, South Africans will be happy to help.
Reproduced with permission from Foreign Policy www.foreignpolicy.com © The Washington Post