From Apartheid to Majority Rule: A Glimpse into South Africa's Journey towards Democracy [Article]

Item Type Article; text

Authors Jenkins, Daisy M.

Citation 13 Ariz. J. Int'l & Comp. L. 463 (1996)

Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ)

Journal Arizona Journal of International and Comparative Law

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Link to Item http://hdl.handle.net/10150/659360 FROM APARTHEID TO MAJORITY RULE: A GLIMPSE INTO SOUTH AFRICA'S JOURNEY TOWARDS DEMOCRACY

Daisy M. Jenkins

I. INTRODUCTION

After so many centuries, we will finally have a government which represents all South Africans. After so many centuries, all South Africans are now free.... The greatest challenge which we will face in the government of national unity will be to defend and nurture our new constitution. Our greatest task will be to ensure that our young and vulnerable democracy takes root and flourishes.... I shall lay down my responsibilities as state president.... I shall be handing the presidency to Mr. Mandela .... I shall be surrendering power, not to the majority of the moment, but to the South African people. I shall do so with the strong conviction that henceforth sovereignty will ultimately lie with 1 them and in the constitution.

On May 10, 1994, Nelson Rolihlahla Mandela was inaugurated as South Africa's first black president. As he lowered his hand and spoke the last words of the presidential oath, Vuyelwa Pitje, one of the many black South Africans who gathered with pride and rejoicing to watch the historic event, felt shackles fall from her ankles.2 "Now I can walk anywhere, anytime, and I don't have to ask, 'Am I allowed in here?' she exclaimed. "I feel like a human being now!" She almost sang the last few words and began to dance, smiling from ear to ear.3 She was undaunted by the fact that she and so many others had to watch the inauguration from a huge screen on the Union Buildings' lawn in Pretoria.4 5 Knowing that liberation had begun was enough.

1. F.W. De Klerk (former president of South Africa), Speech Excerpts Series: South Africa Elections, ST. PETERSBURG TIMES, May 3, 1994, at 10A. 2. The World's HappiestNation, Mandela's Oath, Event to Treasure, CINCINNATI POST, May 11, 1994, at 2A [hereinafter World's Happiest Nation]. For black South Africans, the inauguration was the symbolic end of 350 years of racial oppression. Id. 3. Id. 4. ANC's Mandela Inauguratedas South Africa's first Black President-Electedby Assembly Unopposed, May 12, 1994, available in Westlaw, FACTS ON FILE WORLD NEWS DIGEST FACTS ON FILE, File No. 2256002 [hereinafter ANC's Mandela]. President Mandela was inaugurated at the Union Buildings' amphitheater in Pretoria, the administrative capital of the Republic of South Africa, in central Transvaal, 35 miles northeast of Johannesburg. The amphitheater, built in 1910 by whites who intended the structure to be symbolic of white power and domination over the black community, 464 Arizona Journal of Internationaland Comparative Law [Vol. 13, No. 2

The road to Nelson Mandela's historic presidency was paved by the efforts of black and white leaders who, for three years, painfully negotiated to create a new, color-blind South African constitution. 6 President De Klerk, African National Congress (ANC) leader Nelson Mandela and other senior political leaders ratified the new constitution on November 18, 1993, preparing the way to free and fair elections. 7 After eight decades of struggle in South Africa, led by the African National Congress, "the day finally arrived when all South Africans, black and white, cast their ballots equally in a national election for a government of their choice." 8 For the first time in their history, South Africans of all races, all social and economic backgrounds, will grapple with the promises and uncertainties of majority rule and constitutional democracy. 9 South Africa's new constitution marks a fundamental change in the way South Africa is governed-from a policy of racial separation and suppression to one of negotiation and conciliation.10 Of equal importance, for the first time

is perched atop Meintjies, the highest point on Pretoria. Approximately 50,000 people crowded into the open park land below the amphitheater to watch the inauguration on a large-screen television. Id. 5. World's Happiest Nation, supra note 2, at 2A. 6. New Constitution Abolishes Apartheid, South African Leaders Agree To Grant Blacks Equal Rights, THE STATE JOURNAL-REGISTER (Springfield, II1.), Nov. 16, 1993, at 3. 7. Id.; see Vivienne Goldberg, South Africa: Private Law In TransitionffThe Effect Of The New Constitution, 33 U. LOUISVILLE J. FAM. L. 495, 495 (1994-95). The CONST. oF THE REPUBLIC S. AFR. ACT 200 (1993) came into operation the day of the national election, Apr. 27, 1994, replacing the interim constitution for postapartheid South Africa. Id.; see also Paul Taylor, South African Leaders OK Constitution, MORNING NEWS TRIB. (Tacoma, Wash.), Nov. 18, 1993, at A3. The new constitution provided for a bill of rights and electoral laws that ended the oppressive apartheid system that stripped the majority of basic human rights and imprisoned Mandela for 27 years. Id. 8. Danielle DeBruyn, The Road to Democracy: South Africa's Democratic Elections, NAT'L B. Ass'N MAG., May-June 1994, at 8. The African National Congress [hereinafter ANC], Africa's oldest liberation movement founded in 1912, believed that only active struggle could shift the balance of forces in South Africa in favor of the oppressed black majority. Although the ANC had led several militant demonstrations after its founding, it was the Program of Action in 1949 that set the course of active mass resistance to the system of white domination. During the 1950s, the ANC became the single most powerful voice against the system of racial tyranny, as reflected by its leadership in the women's actions against passes, uprisings of the landless rural masses, bus boycotts, stay-at-homes, and other actions against white minority government. Id. 9. See Steven Keeva, Defending The Revolution Armed With A First-Ever Bill Of Rights, South Africa's Lawyers Must Learn A New Way Of Thinking In Order To Protect Constitutional Freedoms, 80 A.B.A. J., Apr. 1994, at 50. 10. Randal S. Jeffery, Social and Economic Rights in the South African Constitution: Legal Consequences and Practical Considerations, 27 COLUM. J.L. & SoC. PROBS. 1, 2 (1993). The policy shift is generally recognized to have occurred on Feb. 2, 1990, when South African President De Klerk, in a speech to Parliament, lifted 1996] From Apartheid To Majority Rule

ever, South Africa's new constitution will be shielded from the political process." A new constitutional court12 invested with the final say on all constitutional matters, including questions of individual rights and the validity of acts of Parliament, will replace the nation's historically all-white Parliament, which has served as supreme maker and arbiter of the law.' 3 The court will also certify a new constitution for compliance with the thirty-three constitutional principles agreed upon during negotiations.14 Despite the dramatic changes brought about by the new constitution, there is still cause for much concern for the majority of South Africans, particularly black South Africans. They continue to face staggering poverty, broken communities, crushed ambitions, and hopelessly undemocratic institutions. 15 If South Africa is to succeed as a rights-based, constitutional democracy, lawyers and judges must ensure that the fundamental rights of black South Africans are both well defined and protected.' 6 Yet, black South Africans have a profound distrust of the law and the courts, which they perceive as the white man's justice. 17 Indeed, such distrust is well-founded. Although South Africa is a diverse nation, the South African bar and judiciary are overwhelmingly white males.' 8 As the Republic of South Africa prepares to dismantle apartheid, it is once again the white man who will be making the laws. 19 Consequently, the critical question, as South Africa dismantles apartheid and moves toward a democratic form of government, is whether the white judiciary will interpret and enforce the new constitution in a manner that protects the fundamental rights of blacks, as well as the white minority. the ban on 33 political organizations, announced the imminent release of Nelson Mandela from prison, and committed the National Party (the majority ruling party since 1948) to negotiations of the new constitution. Id. at 54 n.4. 11. See id. at 3. South Africa now has a secure constitution which will not be under the control of Parliament. Id. 12. Id. at 2; see Keeva, supra note 9, at 57. The ANC proposed that the constitutional court serve as the "watchdog of democracy" in South Africa to ensure a constitution that is sovereign. Id. 13. Keeva, supra note 9, at 51. If a judge made a ruling that didn't meet the Parliament's approval, it simply passed a new law. Lawyers who disagreed with Parliament's rulings had no other authority to which they might appeal. There was no authority greater than parliament. Id. 14. Id. at 52. Over the next five years, a joint conference of a new bicameral Parliament is to revise the new constitution. Id. 15. Id. at 55. 16. Id. at 52. 17. Id.at 55. 18. Keeva, supra note 9, at 60. "South Africa has a British-style legal system in which attorneys consult with clients and advocates try cases. There are 8368 attorneys now in practice, of whom 1178 are people of color. Of 1253 advocates, 95 are not white and only five non-whites are among the ranks of senior advocates." Id. 19. Jose I. Fernandez, Dismantling Apartheid: Counterproductive Effects of Continuing Economic Sanctions, 22 LAW & POL'Y INT'L BUs. 571, 571 (1991). 466 Arizona Journal of Internationaland Comparative Law [Vol. 13,. No. 2

This Note examines some of the critical hurdles surrounding the development and implementation of a new South African constitution, and the end of apartheid. The Note gives special emphasis to the fundamental structural changes that are necessary within the legal system to assure that the black majority in South Africa achieves its rightful share of power in the post-apartheid regime, as well as basic civil rights.

II. THE ERA OF APARTHEID

A. A System of Oppression

South Africa's comprehensive system of racial segregation, known as apartheid,20 was not a unique set of ideas and practices that sprang full-blown from the heads of Afrikaner nationalists. 21 The system of domination and privilege based on race goes back to the first white settlers from the Dutch East India Company, who landed at the Cape in 1652.22 The Dutch introduced slavery to the Cape as a means of supplying laborers to work on the settlers' farms, as well as to work in urban trades as skilled artisans and craftsmen. 23 Slaves were

20. EUGENE P. DVORIN, RACIAL SEPARATION IN SouTH AFRICA 3 (1952). Apartheid, introduced in 1948 by the white South African Nationalist Party, is an effort by which the Party sought to preserve the cultural and racial unity of the Afrikaner people (descendents of the union of the first European settlers in South Africa). It's primary purpose was to preserve and to reinforce a position of dominancy of the white man over the black man in every facet of human activity. Id. 21. -IERMANN GiUOMEE & LAWRENCE SCHLEMMER, FROM APARTHEID TO NATION- BUILDING 1 (1989). Social relations in pre-industrial South Africa were characterized by three main features. First, no white labor force developed during this period because slavery and frontier conquest placed an unskilled and oppressed black labor force'under white control. A disastrous loss of social status befell any white who performed manual labor. Second, although a minority in population, there were enough whites to fill the strategic positions in the political, economic, and administrative systems of the country. Third, racial discrimination continued to escalate from the late eighteenth century onwards due to white leaders' concerns about growing white poverty and the urbanization of Africans, which threatened the much needed African labor pool. Id. at 9. 22. LEO MARQUARD, THE PEOPLES AND POLICIES OF SouTH AFRICA 3 (1969). The Dutch East India Company sent one of its officials, Jan van Riebeeck, to the Cape in April 1652, to set up a refreshment station to resupply its ships with fresh vegetables and meat. Id. 23. unTHoNY LEMON, APARTHEID: A GEOGRAPHY OF SEPARATION 13 (1976). Slaves, imported from Mozambique, Madagascar and other parts of the west coast of Africa, became the labor force for white settlers. The Dutch also imported a limited number of slaves from the East to serve as skilled craftsmen, such as the Malays. Id. 1996] From Apartheid To Majority Rule

the property of their masters, who showed no mercy in the treatment of their24 slaves and were known to utilize the most gruesome forms of punishment. The Dutch men also cohabited with slave women and fathered the majority of children born to female slaves,25 who later became known as the Cape Coloureds. From 1795 to 1834, except for a brief period from 1802 to 1805, the British occupied the Cape, displacing the Dutch;26 however, the British did not drastically alter the way slaves were treated. After the British abolished slavery 27 they insisted on the technical equality of all before the law; yet, the administration of justice in the Cape essentially remained the domain of white men.28 The arrival of the French Huguenots and Germans fleeing religious persecution in Europe led to further growth of the white settlement in the Cape and the resulting fusion 29 with the British resulted in the Afrikaans nation. While the system of slavery formed the roots of apartheid, the history of modem race relations in South Africa finds its roots in the mining industry, which began when diamonds were first discovered in the Cape Province in

24. Frank Berman, South Africa: A Study Of Apartheid Law And Its Enforcement, 2 TouRto J. TRANSNAT'L L. 1, 3-4 (1991). Severe flogging was one of the milder forms of punishment used by the masters. Other techniques included the mutilation of body parts, stretching the body on the rack, and the thumbscrew (the body broken by iron clubs while being crucified). Id. 25. LEMON, supra note 23, at 14. Over 75% of children born of slave mothers during the first 20 years of settlement in the Cape had European fathers. Although the white government introduced a law in 1685 that prohibited intercourse and marriage between slave women and white men in 1685, miscegenation continued due to the large population of European males as compared to the much smaller population of European females. Id. 26. Id. at 9-10. 27. Berman, supra note 24, at 6. The system of slavery lasted for decades based on the English common law rule that the laws of a conquered country continue in force until they are altered by the conqueror. The abolishment of slavery in the Cape by the British Parliament in 1834 did not lead to the social emancipation of African slaves, who were merely converted to cheap laborers. Id. 28. Id. at 7. Judges, magistrates, and advocates were always white, while interpreters were frequently brown or black. Id. 29. Id. During the 1830s, Afrikaners moved into the hinterland of South Africa to avoid British taxes and British notions of justice. The move into the hinterlands is called the "Great Trek." The Afrikaners settled in the areas between the Orange and Vaal rivers and beyond the Vaal where they founded the Republics of the Transvaal and the Orange Free State. They took their coloured servants from the Cape and later added to their labor supply from the African tribes that surrounded them. The Boers (farmers who were descendants of the Dutch Huguenots) continually extended their farm holdings by taking land from the surrounding African tribes. It was here that the Boer minority created political, economic and judicial mastery over the dark skinned majority. Id. 468 Arizona Journalof Internationaland ComparativeLaw [Vol. 13, No. 2

1867.30 The "rush" for gold closely followed the rush for diamonds, after gold was discovered in the Witwatersrand3 1 in the 1880s. Both discoveries resulted in the construction of cities and towns, the development of transportation links and other infrastructural developments, as large numbers of immigrants flocked to South Africa in search of their fortunes. 32 The white mining companies first attempted a more elaborate system of segregation in the diamond mines.33 Under the guise of preventing diamond smuggling, the mining industry established crude compounds for single African men.34 The ultimate goal of both the diamond and gold mining industries was to maintain a steady supply of cheap African labor using a system of "localization." 35 Localization, with its confined and cheap labor supply, was especially important to the gold mining industry. 36 Unlike the price of diamonds, set by national standards, international agreements determined the price of gold, which led mining companies to heavily concentrate on 37 controlling the costs of extracting the gold. The mining companies quickly grasped the solution to increasing labor costs, which was South Africa's large, untapped black population. 38 Along with the labor demands of the mining industry, white farms were also demanding more African labor to keep pace with the demands created by industrial and urban

30. Bentley J. Anderson,'The Restoration of the South African Citizenship Act: An Exercise in Statutory Obfuscation, 9 CONN. J. INT'L L. 295, 296-97 (1994); LEMON, supra note 23, at 29. South Africa's first industrial community was the diamond fields. Id. 31. Anderson, supra note 30, at 297 n.9. Witwatersrand is a low-lying ridge running approximately 60 miles from Pretoria to present-day Johannesburg. Id. 32. Id. at 297. South African and migrant prospectors staked and mined thousands of claims; however, the powerful mining magnates, such as British financier and politician, Cecil Rhodes, purchased and later consolidated the individual claims to form the powerful mining companies. Id. at 298. 33. GuoiMEE & ScHLEMMER, supra note 21, at 9. 34. Id.; DIVORIN, supra note 20, at 35. The compounds were a form of barrack system for single African males who sought work in the mines. The growth of the mining industry attracted large numbers of African men who left their Reserves (inadequate pieces of land allocated specifically for African settlement) in order to seek employment in the diamond and gold mines. Id. 35. GIUOMEE& SCHLEMMER, supra note 21, at 9. Localization was a policy of containment whereby all Africans not accommodated in mining compounds would be put into locations. Mine owners justified the system of localization as a precaution against threatened uprisings, as well as a method to control unemployed Africans who might be a threat to the general white populous. Id. 36. Anderson, supra note 30, at 298. 37. Id. 38. Id. The cheapness of African labor was crucial to the development and expansion of the gold mining industry in South Africa, which had the most extensive goldbearing deposits in the world but the poorest in gold content per ton. LEMON, supra note 23, at 30. 19961 From Apartheid To Majority Rule

growth. 39 Industrial and urban growth also created new opportunities for African commercial agriculture, however, which greatly increased peasant economic activity in the late 1800s and threatened to reduce the availability of labor on mines and white farms.40 Concern about the impact of a reduction of black labor on the important mining industry caused the government to create a national committee, the South African Native 4Affairs1 Commission (SANAC), to formulate a national level "native" policy. Consequently, after studying the native population, the Afrikaner government (backed by SANAC's .findings) enacted the Natives Lands Act in 1913, which was the first attempt at legislating apartheid. 42 The Native Lands Act apportioned South Africa's lands giving most of it, ninety-three percent, to whites, while allocating only seven percent to blacks for use as reserves.43 The Act also restricted black's access to white land by making it 44 illegal for any African to be on European land who was not a hired servant. The Act uprooted black familes from land that had been in their families for generations and forced them to sell their successful farms to white farmers and move to the "reserves." 45

39. LEMON, supra note 23, at 30. 40. Id. Despite minimal land allocation, even in the Transvaal and Orange Free State, Africans found means to enter the market economy. They somehow managed to occupy, till, and graze nominally white lands. In some areas of the Transvaal where land appropriation had been more effective, African peasants went so far as to buy back land from whites using the money aquired from the sale of agriculture. Id. 41. Anderson, supra note 30, at 299. The South African Native Affairs Commission [hereinafter SANAC] issued findings on the education, land ownership rights and the political representation of South African blacks. The Commission's most important finding was the perceived balance necessary between the number of blacks needed to satisfy the demand for cheap labor in the mines, and the amount of land in the reserves, where most blacks lived. The Commission was well aware that if blacks had enough land in the reserves, they would be self-sufficient and would prefer the rewards of farming over the grueling work in the mines. Id. 42. Id. at 300; see LEMON, supra note 23, at 32. The Native Land Act designated practically all existing reserves and locations as registered native areas, prohibiting. land transfers by sale or lease to Europeans. Id. 43. Anderson, supra note 30, at 301. This was a period when whites constituted less than 20% of the population, while blacks represented approximately 80% of the population. Id. at 300. 44. LEMON, supra note 23, at 32. 45. Anderson, supra note 30, at 301. The reserves became reservoirs of cheap black labor. The reserves usually consisted of the poorest farmlands and because there was inadequate space to sustain the large numbers of blacks, these people were forced to live by offering their labor-the only commodity they possessed. The Act successfully sustained the low wages offered by white employers. Id. at 302. 470 Arizona Journalof Internationaland ComparativeLaw [Vol. 13, No. 2

The Native Urban Areas Act of 1923, which separated the so-called African "location"' 4 6 from the white town through the establishment of a separate, self- balancing, native revenue account,4 7 followed the Native Land Act. Once the Act established the separate revenue account, the state took the position that it could exclude Africans from white-funded amenities in white areas for which they had not contributed taxes. 48 One of the harshest and most restrictive laws for blacks was the infamous Section 10(1) of the Black (Urban Areas) Consolidation Act of 1945, which made it illegal for blacks to remain in white areas for more than 49 seventy-two hours. In 1948, the National Party50 won control of the South African Parliament 5 1 and embarked on its policies that created a monopoly of white political control. With a strong belief that mere segregation could not provide a permanently secure structure for white dominance, the National Party government introduced its policy of apartheid or separate development, requiring a division of political power between the people.5 2 Minister of Native Affairs Hendrick Verwoerd declared separate development as a necessary tool of white dominance which had to be done to ensure the survival of the white civilization and to retain domination in what is "his" country. 53 Under the restrictive policy of separate

46. GILIOMEE & SCHLEMMER, supra note 21, at 15. Locations developed as dormitory towns that were completely separated from white towns. The word "location" suggests something more remote and inhuman than suburb or village. Id. 47. Id.; see DVORIN, supra note 20, at 29. Municipalities conducting locations or hostels (dormitories) used the Native Revenue Account, a separate municipal accounting system from the white municipal areas, to meet the recurring expenditures of ordinary municipal services. Id. 48. DVORIN, supra note 20, at 29. 49. GEOFFREY BINDMAN, SouTH AFRICA: HUMAN RIGHTS AND THE RuLE OF LAW 12 (1988). The Act required blacks to carry and show on demand a passbook which contained their place of work, employer's name and signature, and showed whether the holder was allowed to stay in a particular white area. From 1916 to 1983, the white government arrested over 18 million blacks for pass law offenses. Id. 50. MARQUARD, supra note 22, at 22. The Afrikaner-based National Party came to power in 1948, as a coalition of the Nationalist and Afrikaner parties. This was the first time that a purely Afrikaans-speaking party was in power since the union of the early Cape settlers as the Afrikaner nation. Id.; see DONALD L. HOROwrrz, A DEMOCRATIC SoumI AFRICA, CONSTIUmONAL ENGINEERING IN A DIVIED SocmY 10 (1991)(citing HERBERT ADAM & HERMANN GILIOMEE, ETHNIC POWER MOBILIZED: CAN SouTH AFRICA CHANGE? 115 (1979)). The National party set up a bulwark of restrictive racial legislation as part of their charter to make the country safe for Afrikanerdom. Id. 51. MARQUARD, supra note 22, at 27. 52. GIUOMEE.& SCHLEMMER, supra note 21, at 35-36. Verwoerd touted separate developments as a way to give blacks jurisdiction over their own nations and territories, which he compared to colonies. Id. at 38. 53. Id. at 36; see Kim Robinson, False Hope Or a Realizable Right? The Implementation of the Right to Shelter Under the African National Congress' Proposed Bill of Rights for South Africa, 28 HARv. C.R.-C.L. L. REv. 505, 508 n.9 19961 From Apartheid To Majority Rule

development, the National Party government assigned each5 4African group to a tribal homeland, which became their legal place of residence. The government implemented a network of statutes to separate the races spatially and socially. 55 During the 1960s, Prime Minster Verwoerd ruthlessly spearheaded efforts that refined, perfected and enforced the apartheid system. 56 Apartheid combines the two ideological themes of white supremacy in South Africa as a means of guaranteeing racial peace and of maintaining a pure white race.57 The first theme was segregation as domination. Apartheid excluded blacks from freely participating in society, as a means of maintaining white rule.58 The second theme was segregation as trusteeship, which would allow 59 blacks to express themselves completely within their own communities. Apartheid was, in essence, totalitarianism, in that the state utilized its authority to regulate virtually all aspects of non-whites' lives, including areas such as

(1993). Prime Minister Verwoerd created the homelands to prevent African domination of South Africa and to promote division among Africans. Id. Africans became citizens of their homelands but foreigners in South Africa proper. HOROwrIz, supra note 50, at 11. 54. HORowrrz, supra note 50, at 11; see also Robinson, supra note 53, at 508 n.9. Africans, deprived of their South African citizenship, were divided into ten ethnicity-based "national units" (North Sotho, South Sotho, Tswana, Zulu, Swazi, Xhosa [divided into two groups], Tsonga, Venda, and Ndebele). They were then assigned to ten homelands: Lebowa, Qwa-Qwa, Bophuthatswana, Kwazulu, KaNgwane, Ciskei, Transkei, Gazankulu, Venda, and KwaNdebele. Fragmented pieces of infertile land scattered throughout South Africa, the homelands are overcrowded, and without vital infrastructure, sewage, and electrical services. Without significant industry, the homelands are also plagued with massive unemployment. Id. 55. HOROWrrZ, supra note 50, at 11. The Population Registration Act (1950) assigned every person to a racial category. The Group Areas Act (1950) segregated every locality by race. The Abolition of Passes and Coordinating of Documents Act (1952) required all Africans to carry all kinds of identifying papers. Hundreds of thousands of Africans have been arrested annually, over the past three decades, for failing to produce these documents on demand. The Reservation of Separate Amenities Act (1953) formalized segregated public facilities. Id. 56. Id. 57. GILIOMEE & SCHLEMMER, supra note 21, at 35. 58. Id. Given the sizeable majority of the African population, the Nationalist Party feared that the co-existence of Africans and whites would lead to the emergence of an African majority government. Id. at 33. Additionally, the Party argued that African access to strategic levels of the economy was a direct and long-term threat to white political control. Id. at 35. 59. Id.; see DVORIN, supra note 20, at 8. Some refer to this theme as the positive side of apartheid in that the Nationalist Party government replaces the rights taken away from Africans with something better, which is the opportunity for Africans to develop in their own sphere rather than become a bad imitation of the white man. Id. (For the author of this Note, it is difficult to imagine how anyone could possibly find a positive side to a system as cruel and oppressive to humankind as the system of apartheid.) 472 Arizona Journalof Internationaland Comparative Law [Vol. 13, No. 2

60 religion, sports, and the preservation of a particular ethnic or cultural identity. It was, furthermore, a system of institutionalized violence because apartheid's architects could only achieve success through the most repressive means of law enforcement. 6 1 Apartheid inevitably culminated in state absolutism because the state entrusted its law enforcement agencies with powers that were not made subject to the rule of law62 and systematically disregarded the procedural directives 6 3 of the due process of law. A key issue for the current government is to gain the capacity through the democratic process to redress the gross disparities that exist because of apartheid. 64 Today, many millions of black South Africans live in poverty and desperation as a direct result of apartheid, including over seven million homeless people.65 Ultimately, "apartheid denies black people in South Africa the 'right to be,' the 'right to belong,' and the 'right to have."' 66 The denial of blacks' "right to be" resulted from white political power at a particular point in South African history which decreed what blacks must be.67 Apartheid denied black people the "right to belong" to the communities of their choice through segregation by skin color.68 Apartheid denied black people the "right to have" by eliminating their 69 access to jobs, education, voting and other opportunities available to whites.

60. Johan D. van der Vyver, Constitutional Options For Post-Apartheid South Africa, 40 EMORY L.J. 745, 750 (1991). 61. Id. at 751. 62. See BINDMAN, supra note 49, at 110. South African judges are free to interpret legislation based on common law concepts that embrace liberty and equality in the administration of justice, however, they are often criticized for making judicial choices that are most favorable to the government. Id. 63. van der Vyver, supra note 60, at 751; see BiNDMAN, supra note 49, at 119. Security forces had unlimited power to arrest and detain blacks and were basically shielded from any court intervention. The Police Act of 1958 made it a criminal offense to publish any false information about the police unless there were reasonable grounds for believing the statement to be true, which placed the burden on the publisher to prove he had reasonable grounds. Id. at 122. 64. Jean-Marie Henckaerts, InternationalLaw Implications For The Transition In South Africa, 86 AM. SOC'Y INT'L. PRoc. 287, 295 (1992). 65. Id. 66. Kenneth D. Kaunda, Humanism and Apartheid, 37 ST. LouIs U. L.J. 835, 837 (1993). 67. Id. 68. I. at 838. Advocates of apartheid argued that people ought to have the right to belong to their own cultural groups, which is how they justified the need for separate development based on cultural autonomy. This argument is basically flawed because the laws that are used to define cultural boundaries in South Africa use skin pigmentation to determine the borders of culture. There is no other way to explain why Greeks, Italians, Afrikaners, Englishmen, and Swedes are described as whites, while Zulus, Xhosas, and Vendas are described as separate nationalities. Id. 69. Id. The Charter of the United Nations defines certain fundamental rights which all nations should grant to every one of their citizens for no other reason except 19961 From Apartheid To Majority Rule

The apartheid legislation mandating racial segregation and discrimination has begun to unravel over the last several years. 70 Most laws that compelled segregation in public accommodations have been rescinded.71 Nonetheless, statutory and constitutional protections guaranteeing equal treatment are necessary to ensure equality for all South Africans.72 One need only look to the American experience to illustrate the ineffectiveness of merely changing the statutory laws 73 as a means of achieving racial equality.

B. The People of South Africa and Ethnic Tension

South Africa is a country of minorities who speak at least twenty languages.74 The system of racial classification formalized by apartheid, divided South Africa's population into four major groups: "White" (almost all of Afrikaner or English origin, but including Germans, Portuguese and other minorities); "Coloured" (people of mixed race); "Indian" (largely descended from indentured servants brought from the Indian subcontinent by the British to work in the sugar plantations at Natal); and "African" (of solely African ancestry). 75 that they are human. Apartheid grants certain rights only to people of a particular racial group. Thus, "based on their skin color, some have access to education; access to job opportunities; access to the right to vote and share in government; and even access to the right to freely worship." Id. at 838. Conversely, for others, these rights are legally withheld, either entirely or to a limited degree. Id. 70. See R. HuNT DAVIS, JR., APARTHED UNRAVELS 14 (1991). President De Klerk announced at a 1991 parliamentary session his intention to dismantle much of the remaining formal apartheid system-the 1913 Land Act, the 1966 Group Areas Act, the 1984 Black Communities Act, and, most importantly, the 1950 Population Registration Act, which set up the formal racial classification system for all South Africans. Id. 71. F. Michael Higginbotham, Sins From the Past and Lessons for the Future: EliminatingApartheid in South African Public Accommodations and the Challenge to an Enlightened Judiciary, 12 B.U. INT'L L.J. 1, 55 (1994). 72. Id. 73. Langston Hughes, the famous African-American poet, told the following story to illustrate the ineffectiveness of merely changing statutory laws to end racial segregation: The man said "I believe they are shorthanded, but I don't believe they're employing any colored boys in the reconversion jobs." I said, "what makes you think I'm colored? They done took such words off of jobs in New York State by law." I know he wanted to say, "But they ain't took the black off of your face." Id. 74. Bronwen Manby, South Africa: Minority Conflict and the Legacy of Minority Rule, 19-SPG FLETCHER F. WORLD AFF. 27, 27 (1995). 75. Id. at 28. 474 Arizona Journal of Internationaland ComparativeLaw [Vol. 13, No. 2

The total population of South Africa, including the ten "homelands," in 1991 (the year of the most recent census) was 38,500,000.76 The breakdown by racial groups follows: African 29,260,000 (76% of total); White, 5,005,000 (13%), Coloured, 3,080,000 (8%), and Indian, 1,155,000 (3%).77 Notwithstanding such racial diversity, serious ethnic tensions have long plagued South Africa.78 One of the more prevalent forms of ethnic tension in South Africa is the long-standing white prejudice against blacks.7 9 As a result of white oppression of blacks, black hostility against whites clearly exists, although the 1994 South African elections suggest that such feelings are hardly dominant 81 in black political sentiment.80 There is also intra-African tension. Nevertheless, one can trace the source of ethnic tensions to the ideology and culture of white supremacy which turned communities of color against one another by creating hierarchies of privilege and access, and by assigning racially subordinated groups different places within those hierarchies.8 2 Groups assigned a higher status by the white power structure find that their belief in the inferiority of another group gives them an investment in white privilege. 83 To illustrate, although apartheid deprived all three non-white groups of their political and social rights, it fostered clear status distinctions among the three groups.84 Certain privileges offered to Asians were denied to Coloureds, who in turn received

76. Robinson, supra note 53, at 508. 77. Id. 78. See Stephen Ellmann, The New South African Constitution and Ethnic Division, 26 COLUM. HUM. RTs. L. REV. 5, 5-6 (1994). 79. Il. at 6. 80. Id. at 44. The Pan Africanist Congress, a militant black organization with the slogan "one settler, one bullet," placed sixth in the 1994 election in which it won only 1.2% of the votes and just five seats in the National Assembly. Id. at 44 n.2. 81. See infra text accompanying notes 87-90. 82. Charles R. Lawrence, ForwardAce, Multiculturalism, and the Jurisprudence of Transformation, 47 STAN. L. REV. 819, 831 (1995). 83. See id. The white power structure rewards this type of inter-group racism by reinforcing the group's higher status; thus, the group (feeling good about its greater level of acceptance) is less likely to experience the full force of its own subordination. The groups of lower status resent the privilege of those who are a rung above them on the ladder and begin to scapegoat other groups who compete with them for the same menial jobs and other resources. Ironically, the anger and resentment of these groups, as they label each other as inferior, are expressed in the same racist terms used by whites. Id. 84. See id. The vehicles for such disinctions were the Population and Registration Act (1950) and the Group Areas Act (1950), the cornerstones of apartheid. The Population and Registration Act authorized official classification of all South Africans according to race. The Group Areas Act provided that each racial group could own land, occupy premises, and conduct business only in its own separate area. Id. at 831-32. 19961 From Apartheid To Majority Rule

privileges that were denied to Africans, who basically had no privileges.85 Ironically, Coloured and Indian alienation from Africans seems to have played a significant part in the victory of the National Party, the very architects of 86 apartheid, in the provincial elections in the Western Cape. One of the primary concerns for President Mandela and his new government is the ethnic tensions among different groups of blacks 87 and the violence that has resulted from these tensions.8 8 Such ethnic tensions are often described in the media as the vestiges of long-standing inter-tribal conflicts. 89 However, a more accurate view of these tensions lies within the apartheid legislation, orchestrated by the National Party government, which led to the modem conflicts among blacks injured by apartheid legislation. 90

85. Id. at 832. The insidiousness of it all is apparent in the treatment of Nelson Mandela, while he was a political prisoner from 1963 to 1990. He described how South African prisons not only separated political detainees by color but also served them different meals according to their place in the racial hierarchy. For example, white prisoners received white sugar and white bread with their meals, Indian and Coloured prisoners were given brown sugar and brown bread, and African prisoners received neither bread nor sugar. Id. 86. Ellmann, supra note 78, at 6. Most Coloureds voted for the National Party over the two African parties (the ANC led by Nelson Mandela and the Inkatha Freedom Party (predominantly Zulu organization)). Id. at 44 n.5; see Lawrence, supra note 82, at 832. The National Party successfully campaigned in Coloured areas using comic books that employed blatant racist stereotypes of both Coloureds and Africans. One strip had an unkempt African ringing the doorbell to a Coloured home and saying, "I've come to look at the house that Mandela is giving me after the elections." Id. 87. See Ellmann, supra note 78, at 44 n.3. Many South Africans use the term "black" to refer to all South Africans of African, mixed-race ("Coloured" in South African parlance), and Indian descent. Id. The use of "black" in this context refers specifically to Africans. 88. Bob Drogin, National Agenda ANC-Zulu Feud FlaresAgain in South Africa; Political Violence Surges in KwaZulu-Natal Province as Nation Preparesfor Elections in Fall, L.A. TIMEs, June 20, 1995, at 2; see infra notes 88-92 and accompanying text. For many years, the bitter power struggle in KwaZulu-Natal province between Mandela's African National Congress and Zulu Chief Mangosuthu Buthelezi's Inkatha Freedom Party, has plagued Black unity. See also Manby, supra note 74, at 39. The Inkatha Freedom Party embraced a conservative position of respect for authority as opposed to the radicalism of the ANC. Buthelezi characterized the ANC's call for the abolition of the homeland system as an attack on Zulu political and cultural survival. Id. at 41. 89. Manby, supra note 74, at 43. Media commentary often refers to traditional hostility between the Zulu and Xhosa peoples as an explanation of the tensions between the ANC and the Inkathas; however, the Zulu and Xhosa kingdoms never engaged in direct conflict during the pre-colonial period. Id. 90. See supra notes 83-85 and accompanying text; see Lawrence, supra note 82, at 829. People of color are taught to hate themselves in a white supremacist culture and then they turn this self-hate on each other or on other groups who share the dishonor of not being white. 476 Arizona Journal of Internationaland ComparativeLaw [Vol. 13, No. 2

Through the Bantustan Authorities Act of 1951 and the Bantustan Self- Government Act of 1959, the South African government enacted a hierarchical system of authority termed the self-governing native reserves. 91 The government allocated native reserves to each identified ethnic group, which resulted in the African population being divided by the government into nine main, linguistically based ethnic groups, as shown in Table 1.92

TABLE 1. ESTIMATED AFRICAN POPULATION OF SOUTH AFRICA BY ETHNIC GROUP, 1986 Ethnic Group Number (in Millions) Approximate Percentage of Total African Population Zulu 6.5 27 Xhosa 5.5 23 Tswana 3.3 14 Pedi North Sotho) 3.0 13 Sotho (South 2.0 8 Sotho) Tsonga (Shanagan) 1.5 6 Swazi 1.0 4 Venda 0.7 3 Nbebele 0.5 2 Total 24.0 100

Table 1 shows that the two largest amalgams, Zulu and Xhosa, alone comprise about half of the African population in South Africa. These two groups play a major role in South African politics as their long-standing differences have had a direct impact on partisan and leadership preferences among blacks.93 These preferences are the primary source of conflict between the two largest black movements, the Inkatha Freedom Party (largely a Zulu organization), 94 and the African National Congress (largely Xhosa).95

91. Kenneth D. Kaunda, The First Shall Be the Last: The African National Congress and the Inkhata Freedom Party Dispute, 37 ST. Louis U. L.J. 841, 844 (1993). 92. HOROWrrz, supra note 50, at 48-49. 93. Id. at 54. 94. Kaunda, supra note 91, at 845. Chief Buthelezi used the term inkatha ye sizwe when he began the movement in 1974, which stood for "grass coil of the nation." 1996.1 From Apartheid To Majority Rule

The head of the Inkatha Freedom Party is Chief Mangosuthu Gatsha Buthelezi,96 who built his following by proclaiming that his Inkatha movement replaced the ANC during the ANC's political exile imposed by the South African government. 97 For decades, Inkatha has been engaged in a political power struggle with the ANC, which still wages today as Buthelezi is locked in a political battle with President Mandela over provincial autonomy and the authority of Zulu chiefs.98 The African National Congress, founded in January 1912 as the South African Native National Congress (SANNC), is the oldest black nationalist movement on the continent.99 The founding fathers intended the organization to be non-racial and above all "to unite the tribes of South Africa; to educate public opinion in the aspirations of the black man; to be the mouthpiece of the people."'100 The initial strategy of the ANC was to peacefully petition the government whenever the rights of Africans appeared to be threatened, particularly in the area of property and land ownership. 10' When the National Party came into power in 1948, however, the ANC had to change its political tactics in order0 2 to deal with an oppressive government no longer interested in African rights.

The word 'inkatha' is a Zulu word for a grass coil placed on the head for carrying a heavy load.. . . It is a Zulu tradition that royalty always keeps a symbolic grass coil in the palace to remind the nation that it must always stand firm in the face of adversity. Id. 95. HOROWITZ, supra note 50, at 54. 96. Buthelezi is a former member of the African National Congress' Youth League whom the government appointed as Chief Minister of the Kwazulu Homeland, the largest native reserve. Inkatha, which began in the 1920s, was a political and cultural movement before Buthelezi took the helm and turned it into a strictly political party. Kaunda, supra note 91, at 845. President Mandela appointed Buthelezi to the cabinet position of Home Minister in the new South African government on May 11, 1994. ANC's Mandela, supra note 4, at 7. 97. Kaunda, supra note 91, at 845. 98. Lynne Duke, In South Africa, Local Politics Hinder Reform, WASH. POST, June 6, 1995, at A8; see Kaunda, supra note 91, at 847. During the period of the ANC exile, Chief Buthelezi was the chief spokesman of those who fought against apartheid. However, the release of Mandela and the lifting of the ban of the ANC impacted the stature of Chief Buthelezi. Both Mandela and Buthelezi have also made public statements that may have charged the emotions of the followers of the two parties into acts of aggression against each other. Id. 99. Kaunda, supra note 91, at 843. 100. WnjIAm GUrrERZGE, SouTH AFRICA FROM APARTHEm TO NATiONAL UNITY, 1981-1994, at 125 (1995). 101. Kaunda, supra note 91, at 843. From 1912 to 1949, the ANC dealt with the government based on trust and faith in the existing statutes of the law. Id. 102. Id. 478 Arizona Journalof Internationaland ComparativeLaw [Vol. 13, No. 2

The ANC, led by Oliver Tambo, I0 3 transformed itself from a pressure group to a militant guerilla movement engaged in armed struggle against the apartheid regime in South Africa. 104 During the 1950s the ANC became the single most powerful voice against the system of racial tyranny through its alliances with the South African Indian Congress, the Coloured People's Congress, the Congress of Democrats, the South African Congress of Trade Unions and the South African Communist Party.' 0 5 The National Party government outlawed the ANC in 1961, five years after the ANC introduced its Freedom Charter. 10 6 The 1 7 government either imprisoned or forced ANC leaders into external exile. 10 8 The most recognized leader and President of the ANC is Nelson Mandela. Mandela was a key figure of the ANC Youth League during the 1940s and 1950s, and was instrumental in steering the ANC towards a more militant movement after its banning in 1960.109 Mandela, a sophisticated strategist, organized the military underground and was labelled as the "Black Pimpernel" by the National Party." t0 The National Party government arrested and charged Mandela with subversion, the crime for which he served twenty-seven years as a South African political prisoner before his release from prison in 1990.111 In that same year, then President De Klerk, removed the ban on the ANC and lifted the emergency l2 restrictions on political activists in exile from South Africa." The ANC and the Inkatha "are not in any way in opposition to each other" in that they share a common interest in having a democratic system replace the apartheid system of government in South Africa. 113 The two parties politically represent the majority of black people in South Africa and should be partners in

103. DAVIS, supra note 70, at 74. Former president and chaplain-general of the ANC and strong supporter of Nelson Mandela, Mr. Tambo provided strong leadership of the ANC during Mandela's imprisonment. Id. 104. Kaunda, supra note 91, at 843. 105. DeBruyn, supra note 8, at 9. 106. Kaunda, supra note 91, at 846. The Freedom Charter affirmed that South Africa belonged to all those who lived in it. It further declared that the legitimacy of any current or future government could only come from the people. It demanded the creation of a non-racial democratic government, equal protection before the law, nationalization of banks, mines, and heavy industry. It also demanded distribution of land and distribution of equal work and equal educational opportunities. Id. 107. Id. 108. See CENTRE FOR POLICY STUDIES, THE LONG JOURNEY: SOUTH AFRICA'S QUEST FOR A NEGOTIATED SETrLEMENT 14 (Steven Friedman ed., 1992). 109. Id. at 9. 110. Id. Mandela's resilience and unwavering commitment to ANC goals during his 27 years of imprisonment made him "a symbol of unremitting opposition to white rule." Id. 111. DeBruyn, supra note 8, at 9. 112. Id.; see also Manby, supra note 74, at 35. 113. Kaunda, supra note 91, at 847. 19961 From Apartheid To Majority Rule

the fight for democracy instead of political rivals who disunite black people.1 14 This disunity is delaying the death of apartheid.1 15 Consequently, the two leaders must take affirmative steps to join forces and lead a united front to hasten the departure of apartheid from the face of this earth.

III. DISMANTLING THE REMAINS OF APARTHEID

Apartheid is a comprehensive system of racial oppression and government enforced inequality which permeates all institutions of South African government and society.' 16 The roots of apartheid, so deeply entrenched into every aspect of South Africa's existence, will greatly hinder its transition to a new democratic order. Indeed, the exposure of the legislative and administrative underpinnings of apartheid will further emphasize the ravages wrought by apartheid. 17 As Arthur Chaskalson, a Johannesburg advocate of many important legal challenges to apartheid, observed, "It is important to remember that we are not starting from scratch after the election. . . . All the institutions and structures of the society have been distorted, and that is not going to be fixed in a day." 1 8 To effectuate its profound transition, South Africa must rely not only on its new political government but also on its new interim constitution, which provides for democratic elections and demands the reform of its notorious legal system.

A. The New Interim Constitution

On April 27, 1994, South Africa adopted an interim constitution, the Constitution of the Republic of South Africa Act 200 (1993).'19 For the first

114. Id. at 848. Unfortunately, the two groups define the problems facing black South Africans differently. One party sees the other as standing in the way of the pursuit of its legitimate interests; thus, the opponent is viewed as an obstacle. The frustrations caused by the obstacle, therefore, makes the obstacle a target for aggression. Id. 115. Id. at 842. 116. Michael Savage & Olive Shisana, Health Provision in a Future South Africa, in CHANGE IN SoutH AFRIcA 94 (J. E. Spence ed., 1994). 117. Id. 118. Keeva, supra note 9, at 54. 119. Goldberg, supra note 7, at 495; see David Welsh, Negotiating a Democratic Constitution, in CHANGE IN SOUTH AFRICA 25 (J.E. Spence ed., 1994). The constitution is "interim" based on a concession the South African government made to the ANC during the Multi-Party Negotiating Process (MPNP) by which the two factions developed the constitution. The ANC had demanded that an elected constitution-making body, bound by agreed constitutional principles that would 480 Arizona Journal of Internationaland ComparativeLaw [Vol. 13, No. 2

time ever, South Africa has a constitution which guarantees that all people have equal rights and are free to choose their country's government. 120 The elaborately balanced document, which took approximately two years to write, "represents an effort to redress the oppression of the apartheid past and to reassure all segments of a racially divided society that they, [too], will have a secure place in the 121 democratic future.' Classically liberal-democratic in form, the major features of the interim constitution include a bicameral parliamentary system based upon the principle of the sovereignty of the constitution, a justiciable bill of rights, an independent judiciary, including a constitutional court, an electoral system based upon proportional representation, and hybrid federal/unitary arrangements. 122 At the core of the constitution is a provision for a Government of National Unity (GNU), to which the ANC and.the National Party government agreed in 1992.123 The executive section provides for a President and his Cabinet, as well as twenty- 24 seven Ministers appointed by the President. 1 The most important feature of the interim constitution is Chapter Three, which provides for the protection of fundamental rights through a "Bill of Rights."'125 The first article of the ANC proposed Bill of Rights reads:

All South Africans are born free and equal in dignity and rights. No individual or group shall receive privileges or be subjected to discrimination, domination or abuse on the grounds of race, colour, language, gender, creed, political or other opinion, birth or status. All men and women shall have equal protection under the law. 126 emerge from the MPNP, draft and adopt a new (and final) constitution during the country's transitional period. In turn, the ANC accepted the government's insistence that constitutional continuity be ensured by requiring the elected constitution-making body to act as an interim parliament. Id. 120. DeBruyn, supra note 8, at 8. The 1910 constitution gave no rights to the majority of the people and provided for a white government elected by whites. The 1961 constitution declared South Africa to be a Republic and brought about the worst oppression and denial of rights for blacks. The 1983 constitution again left out Africans while providing limited rights for Coloureds and Indians. Id. 121. Paul Taylor, S. African Leaders OK Constitution, MORNINO NEws TRIB. (Tacoma, Wash.), Nov. 18, 1993, at A3. The interim constitution "offers restitution to blacks dispossessed of land by discriminatory laws passed since 1913" and it also "assures whites that landowners will not face a loss of property without compensation." Id. 122. Welsh, supra note 119, at 29. 123. Id. 124. See id. The President will function as head of state and convenor of the cabinet, as well as a member of the National Assembly. Each party holding at least 80 of the 400 seats in the National Assembly may designate an Executive Deputy President from among the National Assembly. Id. 125. Goldberg, supra note 7, at 495. 126. Charles Villa-Vicencio, Whiter South Africa?: Constitutionalism and Law- Making, 40 EMORY L.J. 141, 161 (1991); see DeBruyn, supra note 8, at 15. The ANC 1996] From Apartheid To Majority Rule

Like its U.S. counterpart, the South African Bill of Rights guarantees the right to assemble, the right to freely exercise one's religion, and freedom of expression. 127 The proposed Bill of Rights, as outlined in the "Working Draft of the New Constitution," 128 signals the advent of human rights never experienced by South Africa's black population, such as: the right to equal protection and benefits of the law; that people have inherent dignity and the right to have their dignity respected and protected; the right to privacy, including the right not to have (a) one's person or home searched, (b) one's property searched, (c) one's possessions seized, and, (d) the privacy of one's communications violated; the right to have access to adequate housing; the right not be evicted from one's home arbitrarily and without an order of court made after considering the relevant 129 circumstances; and, the right to have equitable access to land. Each of the different segments of the population in South Africa, divided by generations of colonialism and apartheid, look to a Bill of Rights for different things. 130 While some look for protection from decades of abuse and ways to remedy the inequalities of South African society, others look for protection of 13 property and cultural identity. 1 In addition to the Bill of Rights, the new constitution also creates a new unitary state consisting of nine provinces, a major change from the four provinces and several homelands under the apartheid system. 132 Each province will have specific powers similar to the states in the United States. 133 The national

looked to international instruments such as the following: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, as well as human rights provisions of various constitutions, including that of the United States. Id. 127. Keeva, supra note 9, at 60. 128. The Office of the Cabinet Secretariat Eastern Cape distributed the "Working Draft of the New Constitution," dated 22 November 1995, for comments upon review with the relevant political parties. Letter from Zam Titus, Cabinet Secretariat, Office of the Cabinet Secretariat Eastern Cape, to The Honourable Premier and The Honourable Members of Executive Councils (MECs) (Dec. 4, 1995) (on file with the Arizona Journal Of Internationaland ComparativeLaw). 129. Id. at 4. 130. Villa-Vicencio, supra note 126, at 156. 131. Id. 132. Peter N. Levenberg, South Africa's New Constitution: Will It Last?, 1995 INT'L LAW. 639. Previously designated black homelands have been reabsorbed into South Africa with or without agreement of the homeland sovereigns. Id. 133. Id. Such powers include: agriculture, education, housing, health services, roads, welfare services, casinos, the environment, and nature conservation. Although police powers are also included, provincial police will be supervised by the national police commissioner and become part of the national police force. Id. 482 Arizona Journalof Internationaland ComparativeLaw [VoL 13, No. 2

Parliament will exercise preemptive powers over the provincial legislatures 1 34 whenever it deems it in the interest of the nation to do so. The interim constitution seeks to quell anxiety, on the part of those who pressed for greater provincial authority, that the final constitution will simply erase any concessions made in the interim constitution.1 35 Whether in practice the new provinces have the power they need to become meaningful and effective political entities, and whether they-with or without real government powers- become the bases for divisive and secessionist ethnic politics, remains to be 136 seen. The creation of a new constitutional court is a highly significant provision of the new constitution given the supreme powers of Parliament under apartheid.1 37 The constitutional court will have sole jurisdiction to determine the constitutionality of any act of Parliament or any bill before it; sole jurisdiction over any constitutional disputes between segments of the national government; and, sole jurisdiction to determine the questions that fall within its 138 jurisdiction. To ensure that there is no element of compromise of constitutional intent in carrying out the responsibilities of the constitutional court, the constitution provides sophisticated checks and balances in the 139 appointment process. The checks and balances will be largely implemented by incumbent legal professionals, who are predominantly white. Therefore, additional safeguards are required to ensure the effectiveness of the "checks and 140 balances." South Africa's new constitution provides the framework for a new democratic order. To preserve that framework, however, the newly raised expectations of the

134. d. The superiority of Parliament only extends to national matters that require coordinated uniform laws and standards for application throughout the nation. Levenburg, supra note 132, at 639. 135. Ellmann, supra note 78, at 24. 136. Id. at 26. 137. Levenberg, supra note 132, at 655. South African courts had no real authority to review or reverse acts of Parliament on any constitutional ground unless they violated the parity of the official languages, which were English and Afrikaans. Id.; see Villa-Vicencio, supra note 126, at 142. Judicial review was confined strictly to the language question, while Parliament used its dominant authority to confer excessive and near absolute powers on the executive and ruling party. Id. 138. Levenberg, supra note 132, at 656. 139. Id. The court will consist of a president and ten other judges appointed by the President of South Africa. The judges are to be appointed for a nonrenewable period of seven years, not for life. Presidential appointments will include four judges from the existing Supreme Court judges and six other judges selected in consultation with the appointed president of the Constitutional Court. The six judges will be chosen from a group of nominees submitted by a Judicial Services Commission. The Judicial Services Commission will include the President of the Constitutional Court, the Chief Justice of South Africa, lawyers, elected officials, a law professor and other citizens. Id. 140. See infra text accompanying notes 168-69. 1996] From Apartheid To Majority Rule

majority that political and social reform will take place must become reality. The first step towards such a reality was the national elections of 1994.

B. National Elections

The April 1994 elections closed the book on apartheid (from a legal standpoint only),14 ' the political system that legalized the plundering of a black majority by a white minority. 142 President Mandela described April 27, 1994, as not just a date when people voted for a government of their choice but a date of liberation. 143 The events that led up to the elections began in 1990 when President De Klerk made a speech which many took as an indication that 144 he was serious about transforming South Africa. In the midst of escalated violence, many were concerned that the election would not take place but it proceeded as planned.145 The election, based on a system of proportional representation, allowed voters to select the party and not the individuals of their choice. 146 The key parties participating in the election were the National Party (NP) (led by De Klerk), the African National Congress

141. Lucius Walker, Director of the Interreligious Foundation for Community Organization and long-time civil rights activist, warned that people must beware of "cosmetic changes" in South Africa. Walker says, "Many people in the United States believe that apartheid is just about over in South Africa, due to the release of Mandela. But like in the United States, racism will not end in South Africa with a change in the law." Holly Goodman, South Africa Vote Draws Skepticism, COLUMBUs DISPATCH, Oct. 22, 1993, at 06B. 142. DeBruyn, supra note 8, at 8. 143. Charlie Rose: The Eve of South African Democracy Segment Number: 00, Show Number 1108 ('hirteen/WNET television broadcast, May 3, 1994). 144. In his February 1990 speech, De Klerk (announcing the ending of the ban of the African National Congress and other Black organizations and the release of Nelson Mandela) promised that "'[hlenceforth, everybody's political points of view will be tested against their realism, their workability and their fairness. The time for negotiation has arrived."' Lynn Berat, A New South Africa?: Prospects For An Africanist Bill Of Rights And A Transformed Judiciary, L.A. INT'L & COMP. L.J. 467, 468 (1991) (quoting N.Y. TIMEs, Feb. 3, 1990, §1, at 6). 145. Political violence claimed the lives of 8,312 people from July 1990 to February 1994. The vast majority of the violence took place in the the industrial heartland (Natal to the Pretoria-Witwaters-rand-Vereeniging (PWV)) surrounding Johannesburg. Manby, supra note 74, at 40 n.33. 146. DeBruyn, supra note 8, at 14. Voters cast their votes on the ballot form which listed the names of all parties participating in the election. Next to each party name was the symbol of that party and a photograph of the party leader. Voters left it to the parties to select the individual representatives. Id. 484 Arizona Journalof Internationaland ComparativeLaw [Vol. 13, No. 2

the Inkatha Freedom Party (IFP) (led by Buthelezi), and (ANC) (led by Mandela), 47 the Conservative Party (CP) (led by the Afrikaner Resistance Movement).1 While the all-race election results signaled the end of the apartheid system of government and altered the role of ethnicity, group loyalties of race, language, and culture axe important in mobilizing popular support for South Africa's new government. 14 8 Disputes around ethnic authenticity continue to plague Zulu leadership, where the chieftainship system remains intact. 149 The white right wing parties, such as the Conservative Party and the Freedom Alliance, oppose the transition from apartheid and vigorously pursue self-determination and an Afrikaner homeland. 150 Other groups, such as the "Coloured Resistance Movement," are making demands, including consideration of a Coloured homeland.151 The problems that plague the rising democracy in South Africa cannot alter the emotional catharsis that the elections provided for South Africa's 52 majority population-it was an uhuru election with a vengeance)i

C. Overhauling South Africa's Legal System

While South Africa's transition to a new democratic order will require political changes such as the national elections of 1994, of equal importance are the changes that must be made to the nation's legal system. The need to create a credible and legitimate judicial system in South Africa is crucial for the interpretation of a new democratic constitution that provides for the fundamental

147. Jeffery, supra note 10, at 54 n.10; see Manby, supra note 74, at 45. The ANC won 62.6% of the national vote, a landslide victory. Id. The NP received 20.4% of the vote nationally, winning a majority of 53.2% of the Western Cape votes. Id. at 46 n.58. The IFP, contrary to all predictions, won 50.3% of the KwaZulu-Natal vote and 10.5% nationally. Id. 148. Manby, supra note 74, at 47. 149. Warring factions within the KwaZulu enclaves are the cause of much of the violence among the Zulus, as they continuously strive for power and economic gain. GurmrED, supra note 100, at 168. Conflict has also arisen between the new Zulu king, Goodwill Zwelethini (Buthelezi's nephew), and his uncle, as Zwelethini seeks independence from Inkatha. Manby, supra note 74, at 47. 150. Welsh, supra note 119, at 43. Conservatives called the installation of the multi-party Transitional Executive Council (TEC), the group involved in negotiating the new constitution, a declaration of war. Id. 151. See Lawrence, supra note 82, at 832. Many of the jobs traditionally reserved for Coloureds under the apartheid system may be at risk under the new government; therefore, Coloureds are concerned about gains for blacks that translate to losses for them. Id. 152. Welsh, supra note 119, at 27. Uhuru is the Swahili term for freedom and is widely used by Africans to express the exuberant sense of liberation that follows independence. Id. 19961 From Apartheid To Majority Rule

rights and freedoms of all South Africans.' 5 3 The new constitution and the current dismantling of apartheid should lead to a fairer legal system; however, the .barriers to the formation of a just and fair South African legal system are simply 54 overwhelming.' South Africa's colonial history created a legal framework which shaped and nurtured the system of apartheid.' 5 5 Colonialism led to the blending of the English accusatorial system, which replaced the Dutch inquisitorial system, and also included the English tradition of parliamentary supremacy. 15 6 The resulting South African legal system has been characterized by intense rule-making and little or no respect for human rights. 157 South Africa's legal structures include the worst of all the traditions on which they draw, while ignoring the safeguards against the abuse of power inherent in those traditions. 158 Upon coming to power, the Nationalist Party utilized South African criminal law as one of the key instruments of enforcing apartheid. 159 One of the realities of the apartheid criminal justice system is that criminal defendants are disproportionately black.160 Because the majority of black South African

153. HSRC, CENTRE FOR CONSTITUTIONAL ANALYSIS, No. 4, LAY PARTICIPATION IN A FUTURE SOUTH AFRICAN JUDICIAL SYSTEM (1994). 154. Charles J. Ogletree, Jr., From Mandela to Mthwana: Providing Counsel to the UnrepresentedAccused in South Africa, 75 B.U. L. REV. 1, 9 (1995). 155. Id. at 10; see Villa-Vicencio, supra note 126, at 143. The history of oppressive law in South Africa goes back to the earliest days of colonization beginning with the arbitrary laws imposed by the Dutch East India Company on the native population in 1652. It was primarily the ruthless efficiency of British colonial rule, however, that created the framework for law as the institutionalization of oppression in South Africa. Id. 156. See Villa-Vicencio, supra note 126, at 143. The influence of English law was embodied in arrest procedures, warrant requirements, and bail practices. Id. Parliamentary supremacy in the English tradition is a political system in which Parliament, using absolute powers, could "do everything that is not naturally impossible."' Id. at 146 (citing J. DUGARD, HUMAN RIGHTS AND THE SOUTH AFRICAN LEGAL ORDER 402 (1978) (quoting SIR WILLIAM BLACKSTONE, THE COMMENTARIES ON THE LAWS OF ENGLAND (1765))). 157. Lynn Berat, The Courts and the Economy in a New South Africa: A Callfor an Indexation Model, 15 B.B. INT'L& COMp. L. REv. 1, 3 (1992). 158. Villa-Vicencio, supra note 126, at 144. 159. Ogletree, supra note 154, at 12. Laws such as the Public Safety Act of 1953 (government authorized to arrest and detain blacks without a warrant) and the Criminal Procedure Act (amended in 1965 to allow arrest and detention of any person likely to give material evidence for the State in criminal proceedings) were enacted as part of an effort to criminalize large numbers of so-called "terriorist" activities in order to detain and imprison thousands of black political activists. Id. at 13. 160. Id. at 14. Over 70% of South Africa's 32 million population is African and less than 20% is white, according to the 1991 census. The Annual Report of the Commission of the South African Police states that there were more than two million crimes and offenses committed in 1992 (e.g., theft, housebreaking, aggravated 486 Arizona Journalof Internationaland ComparativeLaw [Vol. 13, No. 2

defendants are illiterate or only marginally literate, they know less about their legal rights than any other segment of the population.' 6' Additionally, the poverty of the vast majority of black South Africans and the dislocation and concentration of basically agrarian people into urban centers have contributed to 62 the magnitude and nature of crime.' 63 The South African legal establishment is also overwhelmingly white.' Although South African legal scholars recognize that the heavily white upper and lower court systems are unacceptable to the black majority, no serious examinations of alternatives have appeared in print.' 64 As of 1990, of the 829 lower court magistrates appointed by the Minister of Justice from the pool of public prosecutors, there were 811 whites, 11 Asians, 5 Coloureds, and 2 Africans. 6 5 The white judicial monopoly has resulted in genuine perversions of justice due to the malice and ignorance that accompany racism and racial insulation. 16 6 It is not surprising that blacks have little confidence in a legal 1 67 system that has enforced the apartheid system and oppressed them. The new constitution contains provisions that offer guarantees for legal rights that heretofore have eluded South African blacks.' 68 Section 25(3) of the constitution guarantees that:

assault, robbery, fraud, murder, etc.) and the vast majority of those accused and convicted of crimes were black. The data suggests that most of the victims were also black. Id. at 14-15. 161. Id.at 15. 162. Id. 163. Id. at 16; see Marshall S. Huebner, Who Decides? Restructuring Criminal Justice for a Democratic South Africa, 102 YALE L.J. 961, 967 (1993). The National Party assured a white stranglehold on the judiciary by appointing only white judges to the Supreme Court, even though whites constitute just over 15% of South Africa's population. Id. The National Party government appointed the first black judge, a South African Indian, on August 12, 1991, who joined the ranks of over two hundred white judges. Id. at 965. 164. Huebner, supra note 163, at 961; see A. Leon Higginbotham, Jr., Seeking Pluralism In Judicial Systems: The American Experience And the South African Challenge, 42 DuKE L.J. 1028, 1041 (1993). "A racially unrepresentative judiciary is [often viewed] as an instrument for imposing the will of the ruling race on other racial groups. . . . The danger of such courts is that there is no 'outsider' [present] to challenge the biases the dominant group accepts as 'self-evident' truths." Id. 165. Ogletree, supra note 154, at 16. 166. Huebner, supra note 163, at 967. Some of the racist prejudices and stereotypes judges have expressed include: blacks have a propensity to stab; black women submit to rape without protest; blacks can recognize people in comparative darkness in circumstances in which a white person could not do so; black women will not generally support the evidence of their husbands against that of their lovers; and black witnesses giving evidence of an alibi generally lie. Id. at 968. 167. Ogletree, supra note 154, at 17. 168. Id. at 19. 1996] From Apartheid To Majority Rule

[Elvery accused person shall have the right to a fair trial, which shall include the right. . . to be represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise result, to be provided with legal representation at state expense, and to be informed of 169 these rights.

Such statutory and constitutional protections are critical to eliminating the denial of legal rights for blacks in South Africa. Consequently, South Africans must exercise care in the judges they choose to interpret the new constitutional provisions so that new interpretations do not perpetuate the apartheid legal system that the nation now strives to overcome.170 The newly elected government officials will also play a prominent role in formulating new laws and procedures in support of the constitutional guarantees. 17 1 In addition to statutory measures, the government must ensure that the general population understands the full 172 implications of their legal rights under the new constitution.

V. ONE SOUTH AFRICAN'S VISION OF THE FUTURE

With the "legal" end of apartheid, the first ever all-race national elections, the election of its first black president, and the ratification of a new constititution, South Africa has entered into a new chapter of its history. While these historic accomplishments are of tremendous importance to South Africa and the world, much more is required to ensure lasting peace and security for the people of South Africa. As an American citizen of African ancestry, who has seen racial segregation legislatively abolished in my country, I am happy for my black brothers and sisters in South Africa who can now taste the precious fruit of freedom. However, my happiness is not without apprehension, for I have tasted the bittersweet fruit of legislated freedom in my own country. It is the freedom that flows from a 200-year-old constitution that originally did not apply to people of African ancestry. Several decades after its ratification, this treasured document was amended so that African Americans could enjoy the blessings of liberty in our great nation, liberty that often eludes us to this very day.

169. Id. This provision does not guarantee universal representation, and the breadth of its mandate will depend on its future interpretation in the South African constitutional court. Id. 170. Id. 171. Id. at 55. 172. A public education campaign would be an effective method of informing people, in the native languages and vernacular of their communities, about the criminal justice process and the legal rights of criminal defendants, as well as information on other constitutional provisions. Ogletree, supra note 154, at 55. 488 Arizona Journalof Internationaland ComparativeLaw [Vol. 13, No. 2

Nonetheless, I applaud the efforts of South Africa's black and white leaders who have negotiated peaceful means to transfer power from the affluent and nervous white minority to the oppressed and impoverished black majority. Their efforts alone demonstrate that South Africa, in spite of monumental hurdles, can be successful in its quest for democracy. As an outsider, it is difficult for this writer to envision what more can be done to ensure the success of democracy in South Africa. The solutions to achieving a democratic nation lie within South Africa, namely with its people. Consequently, it was important to reach out to someone who loves South Africa, who has felt the pain of apartheid but still has hope for democracy, and allow them to share their hope and vision for the future of South Africa. Andrew Lizo Peppetta,17 3 who strongly influenced the writing of this Note, is such a person. Having left Capetown as a young man, Mr. Peppetta, now in his 60s, has continuously shared his hope for a new South Africa with people around the globe. Mr. Peppetta strongly feels that the new government must take 174 specific actions to facilitate South Africa's transition to a democratic nation. First, he believes that a representational government is essential for South Africa to achieve its goal of equal rights for all people. The new government must reflect the rich ethnic and cultural diversity of South Africa. Unlike the all white South African government of the past, the new government must be inclusive to the point where Africans, Whites, Coloureds and Indians can see a reflection of themselves in the nation's new decisionmakers. Mr. Peppetta proudly pointed to President Mandela's recent appointment of Franklin Sonn, a Coloured South 7 5 African, to the prestigious post of Ambassador to the United States. 1 Second, the new government must establish a process for equitable land distribution. Mr. Peppetta concedes that this is perhaps one of the most difficult tasks the new government faces. They must determine a method of apportioning the vast majority of South Africa's land, currently held by the white minority, to

173. Mr. Peppetta, the author's brother-in-law, was born in Capetown, South Africa and is presently an executive with World Vision, an international Christian organization. He earned both his undergraduate and graduate degrees at American universities. He and his wife of 28 years, Laura Peppetta, currently reside in Malawi, Africa but are anxiously awaiting their new assignment to Johannesburg, South Africa in 1996. Mr. Peppetta is ecstatic that he will once again live in his native land. 174. Telephone Interview with Andrew L. Peppetta, Executive Director of World Vision of East Africa (Feb. 1, 1996). 175. Franklin Sonn is the first black South African ambassador in Washington, D.C. The 55-year-old diplomat is a highly respected and successful educator by profession who became rector of Cape Town's tertiary educational institution for coloured students while still in his 30s. He also led teachers' unions and other educational groups. He traveled from township to township to persuade teachers to accept the Freedom Charter of the African National Congress long before the ANC was banned. Nelson Mandela lauded Sonn's efforts in a letter written from his prison cell in the 1980s. Richette L. Haywood, The South African Revolution Comes To America, EBONY, Dec. 1995, at 71, 72, 74, 76. 1996] From Apartheid To Majority Rule

allow the African majority to share in the nation's wealth without massive alienation of the white minority. Mr. Peppetta suggests implementing a system that adequately compensates whites for any land that is taken by the government for redistribution to the disenfranchised black population. Such a system could possibly mirror the American system of "eminent domain" based on the Fifth Amendment to the United States Constitution.17 6 While the concept of eminent domain may represent a plausible approach to land redistribution, a governmental taking of land from whites requires very careful consideration and negotiation. It's ironic that nationalization of resources was the means by which white South Africa built an empire on the backs of black South Africans with the hope that it could forever control the resources of South Africa's rich land. 177 The new government must not allow South Africa's fresh history of oppression to repeat itself under majority rule. Yet, everything possible must be done to assure that the black majority have equal access to the rich resources of their country that are now totally controlled by the white minority. Thirdly, the new government must develop a national education plan that creates educational parity for black and white students, at all educational levels. The apartheid government's long-standing policy of dramatically unequal expenditure by race has created gross inequities in the education of Africans and whites.17 8 Consequently, the majority of blacks in South Africa ae educationally unprepared to seize the economic opportunities that will emerge in the new democracy. Lastly, Mr. Peppetta emphatically stresses that South Africa must remain one united nation and not become a nation of multiple independent states. He believes that South Africa can ill afford to have self-governing homelands for Whites, Africans, Coloureds or Indians. Democratic power sharing must be the goal of the new government and the new leaders must effectively model coalition building, negotiation and cooperation to the people, especially to the various radical groups who are geared up to abort the birth of democracy in South Africa.

176. Constititutional Framers ratified the Fifth Amendment to the Constitution of the United States of America in 1791. The Eminent Domain Clause of the Fifth Amendment provides "nor shall private property be taken for public use, without just compensation." U.S. CONST. amend. V. The clause reflects a judgment that if government seeks to produce some public benefit (the public use requirement), it is appropriate that the payment comes from the public at large rather than from identifiable individuals. GEOFFREY R. STONE Er AL., CoNsrTTUONAL LAW § IX, at 1565 (2d ed. 1991). 177. G. Marcus Cole, Towards a Post-Apartheid Future: Political & Economic Relations in South Africa, 13 Nw. J. INT'L L. & Bus. 711, 725 (1993). 178. HOROWrrZ, supra note 50, at 232. Five times as much was spent on white education per capita than for African education per capita. Moreover, pupil-teacher ratios were two and a half times better in white schools than in African schools. Id. at 233. 490 Arizona Journalof Internationaland Comparative Law [Vol. 13, No. 2

There are many in South Africa who appear to agree with Mr. Peppetta's position on power sharing. For example, Dr. Gerrit Olivier, South African Ambassador to the Russian Federation, says that:

[A]fter the conflict and sorrows inflicted on South Africa by the apartheid system, the vast majority of South Africans have come to believe that without power sharing there will never be peace and [they] will never approximate the rich economic potential of South Africa. The simple truth is that if South Africans want peace, neither black nor 179 white can exclude one another from the governing process.

VI. CONCLUSION

Change in South Africa will not occur overnight and progress will be followed by periods of backsliding. There are many hurdles to overcome before social and economic rights become reality in the permanent South African Constitution, but hope prevails that South Africa will join the ranks of those great nations that "meaningfully address social and economic rights in their constitutions." 180 President Mandela eloquently and powerfully described the challenge for the people of South Africa who want to build a nation on the foundation of freedom.

We understand it still that there is no easy road to freedom. We know it well that none of us acting alone can achieve success. We must therefore act together as a united people, for national reconciliation, for nation building, for the birth of a new world.. . The sun shall never 181 set on so glorious a human achievement.... Let freedom reign.

time

179. Dr. Gerrit Olivier, Making a Constitution for a New Political Order the South African Experience, in PERSPEVS (Feb. 1995) (unpublished collection of South African articles on file with the Arizona Journal of International and Comparative Law). 180. Jeffery, supra note 10, at 53. 181. Nelson Mandela, Remarks at his Inauguration as President of the Republic of South Africa (May 10, 1994) (transcript on file with the Arizona Journal of Internationaland Comparative Law).