MEDIA STATEMENT BY THE
INKATHA FREEDOM PARTY

 


IFP: "KZN CONSTITUTIONAL PROCESS MANIPULATED BY ANC"

PIETERMARITZBURG: April 29, 2005

MEDIA BRIEFING BY
DR LIONEL MTSHALI MPP
LEADER OF THE IFP CAUCUS
KWAZULU-NATAL PROVINCIAL PARLIAMENT

The IFP suspended its participation in the constitution-drafting process of KwaZulu- Natal on account of how the process was being manipulated. From the very outset of this process, we indicated that we are committed to constitutionalism and a process which may serenely and completely explore, to the maximum extent possible, what a constitution can do for our province. We made it clear that we would not lend our support to a process which is manipulated only for the purpose of endorsing and pushing through what the ANC has already decided. We saw too much of it both during the World Trade Centre negotiations and during the Constitutional Assembly and we still bear the scars of it, and so does South Africa. We have lived to see how the many predictions we made about the shortcomings of the constitution adopted at the World Trade Centre and by the Constitutional Assembly have come to pass, for we now live in a one-party state strangling our democracy.

Yesterday we received an ultimatum from the Chairman of the Ad-hoc Committee on Constitutional Affairs, Mr Cyril Xaba, exhorting us to tow the line and to do so within twenty four hours. Nobody gave him the authority to give such an ultimatum, and surely in so doing he is not serving the interests of constitutionalism. I replied to him with a letter which states our position and reads as follows:

Dear Mr Chairman

A constitution-drafting process is about reaching consensus and creating an all-inclusive participatory environment which enables the forging of a long-term compact which may survive for many generations to come. Only such a consensus based and all-inclusive process may give legitimacy to its product.

In your today's letter to me it is clear that you have placed the process above the legitimacy of constitution-drafting and the soundness of its outcome. I find it untenable and unacceptable that you would give us a twenty-four hour deadline about anything. As the Chairman of this Committee, it is your responsibility to ensure that the process is all-inclusive, and it is not your role to exclude anyone by giving a deadline. If the process needs to be halted or suspended to enable space and time to be allowed for negotiations necessary to overcome a crisis, it is your responsibility to ensure that this happens. This is particularly true when the crisis has been partially caused by your own actions.

We remain of the position that your decision not to accept our request to reshape the process, so as to accommodate the input and presentation of members of the Royal House and senior Princes, was a wrong one. We remain of the firm opinion that in this Ad-hoc Committee, as in any other parliamentary committee, the same rule applies that the same majority necessary to pass a Bill must govern the Committee's decisions, both from a substantive, as well as a procedural point. A constitution Bill can only be passed by a two-thirds majority and we believe that decisions in the Committee, both at the procedural and substantive level, ought to be adopted only by a two-thirds majority. This is the fundamental point of contention we have which has made it impossible for us to participate under conditions which enable you to manipulate the process and take decisions which are not consensus building, but are indeed consensus destroying. This is the point which needs to be resolved and negotiated before the process may proceed. This is the point your preposterous deadline seeks to shortcut.

There is plenty of evidence that your chairmanship has driven the process in a direction which is not consensus building and smacks of manipulation and unilateralism. It was your decision, which we rejected, which forced the panel of experts to conduct their work without any prior submission and oral arguments from affected political parties and any interaction with our own legal representatives, with the end result that, by its own admission, their Report is flawed by an excessive cautionary approach and incomplete and flawed professional methodology. The Report itself indicated that it will need to be reviewed once written submission and an oral interaction is allowed to take place, on the same basis that it happens in any similar judicial process.

We also understand that you personally prepared the composite report of all parties' constitutional proposals, which we did not agree to and, to the best of our knowledge, was not mandated by the Committee. This composite document is an absurdity, obviously produced with the benefit of having little or no understanding of constitutionalism. It reflects "the Chinese menu" approach of listing all possible options relating to a subject matter, or aspect thereof, without realising that each of them belongs to a different framework and conceptual schema and cannot easily or correctly be considered analogous to the others. Moreover, for no reason this composite document obliterates the bulk of the IFP proposal. This seems to go hand in hand with your statement reported in the Mail & Guardian that 80% of our proposal was deemed to be non-certifiable by the panel of experts. This statement is utterly wrong. It might be the case that you noticed that the report remarked and analyzed on a large number of IFP proposals, but it failed to notice that at the end of most of such remarks, the experts clearly stated that the matter concerned was not dealing with the certifiability of the Constitution, or did not make the relevant provision non-certifiable. We do not want to ascribe bad faith in your statements reported in Mail & Guardian and therefore we must ascribe them to your not having read carefully or understood the Report.

We are also at a total loss as to how you intend that the Committee reports to the House by May 2, when political and policy discussions on the various aspects of the constitution will have not even begun. Obviously, such discussions and negotiations cannot begin until the process of discussing and ascertaining all relevant aspects of legality has been completed, to the satisfaction of all those concerned and until all relevant public inputs, including those which you have excluded, have been acquired to the process. Therefore, it is obvious that your desire to have the committee reporting to the House by May 2, rather than asking for an extension of the process and relevant deadlines, is a further glaring example of how this process is being manipulated and is not allowed to consolidate consensus so that, by default, it is hoped that the minimalist approach endorsed by your party may become adopted, the minimum common denominator, by necessity and because of lack of discussion and negotiations. I hope that you will appreciate that we are not so naive as to not be able to see all this.

It is clear that Mr Xaba missed the point of the constitution-drafting process. We are convinced that he is doing so on instruction from higher levels of his party who are determined to sideline the IFP and blame us for the failure of the process. It is a strategy that they used successfully at the World Trade Centre when they manipulated the press into portraying us as the spoilers. I hope that on this occasion the press will analyze the facts correctly and accurately and will recognise that spoilers are not those who leave the room, but rather those who forced us out.

The exclusion from the hearings of members of the Royal Family and Senior Princes is both an extraordinary fact and a symptom of a much greater problem showing the manipulation of the process. On April 26 the Chairman of the Ad-hoc Committee on Constitutional Affairs wrote a letter to the Chairman of the House of Traditional Leaders, the Honourable, Prince Mangosuthu Buthelezi, trying to explain away why members of the Royal Family had been excluded. He argued that their exclusion was justified because an opportunity for them to be heard was no longer contemplated within the agreed upon process. However, we would think that when a matter, such as the drafting of a constitution for our province and the accommodation in it of the Monarchy of KwaZulu are concerned, the process is to serve the drafting of a constitution, rather than vice versa. It seems that you have placed the process above the constitution to be drafted. This is particularly unacceptable when one of the major role players in this process had requested that the process be so reshaped as to accommodate the essential need of gathering the inputs of the Royal Family to our constitution drafting. It seems to me that there is no excuse to shortcut public participation on a matter of such paramount importance using process consideration as a lame pretext.

We do not believe that a process of this nature is indeed conducive to proper constitution-making. The May 2 deadline is preposterous when, as I understand it, negotiation on the substantive issues of the constitution have not yet even begun and discussions are still in progress to determine the legal parameters and finalise the Report of the panel of experts which, obviously, pending submissions and other arguments, was only in draft form.

This process is denying legitimacy to its outcome, and we see no purpose in pursuing it under the present circumstances. A constitution should unite us, otherwise it becomes a unilateral imposition which will breed the seeds of long-term conflicts. It is for this reason that the national Constitution makes it clear that matters relating to our Monarch can only be dealt with by a provincial constitution. It would not be permissible to do so either by means of provincial legislation or a national law, and any form of legislation dealing with the Monarchy, other than a provincial constitution, would be incompetent and therefore unconstitutional, including recent proposals for a statutory trust handling the affairs of the Monarchy. Under these conditions there is a necessity to adopt a constitution, which need not be subordinated to the empty process considerations as Mr Xaba is attempting. For this reason it was so important to hear what the Royal Family and Senior Princes had to say!!

In fact, the chapter on the Monarchy is foundational to the rest of the constitution. For instance, when I was the Premier I considered myself promoting legislation for the establishment of a statutory body to attend to the matters relating to the Monarchy and the King, as the Premier is now suggesting. This was a proposal lying around my own office at the time which the Premier has now dusted off and announced with grand pomp. However, what he does not indicate, or perhaps does not realise is that it cannot be implemented without first adopting a constitution for our province, failing which any provincial legislation on the matter would be unconstitutional.

We will be seeking consultation with other political parties on how this crisis needs to be resolved. We wish to stress that this crisis affects other political parties as well, as well as anyone else in the province. We call on the media to exercise a responsible role in informing the public of the facts of the matter without falling into the trap of apportioning blame.

Contact: Dr Lionel Mtshali, 083 256 4902