EXTRACT | Dear Comrade President, this is what we have to report

ABOUT THE BOOK

In his annual presidential address on January 8 1986, ANC president Oliver Tambo called on South Africans to make apartheid ungovernable through armed action and militant struggle. But unknown to the world, on that day, the quiet-spoken mathematics teacher and aspirant priest turned reluctant revolutionary had set up a secret think tank in Lusaka. He named it the Constitution Committee, giving it an “ad hoc unique exercise” that had “no precedent in the history of the movement”.

Knowing all wars end at a negotiating table and judging the balance of forces to be moving in the liberation movement's favour, Tambo wanted the ANC to hold the initiative after the fall of apartheid. Assisted by Pallo Jordan, he instructed the think tank to formulate principles and draft outlines for a constitution that could unite SA when the time came to talk in the fledgling days of freedom and democracy. The seven-member team, including Albie Sachs, Kader Asmal and Zola Skweyiya, started deliberating and reporting to Tambo. In correspondence, they typically addressed him as “Dear Comrade President”.

Drawing on the personal archives of participants, Dear Comrade President explains how the purposeful first steps were taken in the making of SA’s constitution. Why and how did this process happen? What were the first written words? When and where were they put on paper? By whom? What values did they espouse? And how did the committee’s work fit into the broader struggle? This book answers these questions in new, paradigm-shifting ways.

Extract: Behind the scenes during the formation of the National Association of Democratic Lawyers (NADEL)

One of the primary tasks of the ANC’s Constitution Committee and Legal and Constitutional Affairs Department in Lusaka during the late 1980s was to unify progressive anti-apartheid lawyers at home and to initiate a countrywide debate on the constitutional future of South Africa.

The ANC had proposed forming a national body for democratic lawyers in South Africa at the initial Harare engagement with Lewis Skweyiya and Kwenza Mlaba from home in May 1986. It then continued lobbying and meeting with Congress-oriented lawyers in places as diverse as Geneva, London and Lusaka with the aim of building a “progressive alliance”.

This was all part of the ANC’s strategy for creating sectoral bodies in as many areas of life as possible — from religion, sport, trade unions and the economy, to education and the law. This way the organised challenge to apartheid could become more deeply rooted in society, going beyond the formal political level.

By early 1987, Zola Skweyiya was confident that the DLCA had identified a core of progressive lawyers inside the country who could make unity a reality. Mathole Motshekga, a constitutional law lecturer at UNISA who used his university connections to meet secretly with the ANC at the University of Zambia, had been introduced to Skweyiya during a visit to Lusaka in 1986 to meet with Jacob Zuma and Joe Nhlanhla. He returned in February 1987 to consult with, among others, the Constitution Committee’s Teddy Pekane and Penuell Maduna. After their meeting, Pekane and Maduna confirmed that a new national non-statutory body of progressive lawyers was due to be formed in mid-March. It would be called the South African Association of Democratic Lawyers (SAADEL). Some had wanted this body to use “Congress” in its title, but others argued that this would be divisive, and the idea was dropped.

Thus, the idea of forming one progressive body for South African lawyers had gained traction. Consultative meetings were held in Bisho, near eQonce, as well as in Johannesburg and Durban. A SAADEL steering committee was set up by “a loose federal body of the existing lawyers’ bodies”, consisting of two delegates from each of them. There were several small regional bodies that were pro-ANC and popularising the Freedom Charter. Among them were the Democratic Lawyers Association (DLA) in Natal, which had affiliated to the UDF, the Democratic Lawyers Organisation (DLO) in the western Cape, the Democratic Lawyers Congress (DLC) in the Transvaal and Orange Free State, and the Eastern Cape Democratic Lawyers Association (ECDLA). A number of progressive white lawyers were active in the MDM-aligned bodies.

The plan was for this “progressive alliance” to oversee the formation of SAADEL and draw up a constitution for it. The steering committee met at the Riverside Hotel in Durban, with several prominent figures present: Dullah Omar, the western Cape regional leader of the UDF; Silas Nkanunu, a leading sports administrator from Port Elizabeth; Pius Langa and Krish Govender from Durban; Mahmood Cajee and Kader Hassim from Pietermaritzburg; and Mathole Motshekga, Krish Naidoo and Ismail Ayob (Mandela’s personal lawyer) from Johannesburg.

The goal of achieving broad unity on the legal front faced a particular challenge. The Black Consciousness-oriented Black Lawyers Association based in Johannesburg was the biggest alternative grouping at the time. Could SAADEL help facilitate the formation of a single body uniting all the streams of anti-apartheid lawyers for Zola Skweyiya and the DLCA? Would it be possible for them all to work with the BLA within a broad front?

Those who’d been involved in the February briefing in Lusaka were confident that this broad-front planning would be successful. In their report “Black Consciousness and the Perspective of Non-Racialism”, Teddy Pekane and Penuell Maduna disclosed that “Whereas it was initially thought that the BLA would be a problem in this regard, this hurdle was easy to jump and the organisation espouses non-racialism”. The chairperson, Dumisa Ntsebeza, a lawyer and activist who had been subjected to severe repression in the Transkei Bantustan, was “very good at articulating the cause of non-racialism”, they concluded. The main problem foreseen was that the BLA had, in the previous four years, managed to accumulate “property and money and a legal aid clinic in Johannesburg, which they want to control and possess separately”. Others felt that these assets should be put in the SAADEL pool (and that the same should be done with money channelled from abroad for the defence of political trialists and their families). The ANC middlemen foresaw a compromise being reached on this score.

Nelson Mandela, then into the third decade of his imprisonment, was strongly in support of the new unity plans between the lawyers of different ideological persuasions. As early as 1985 he was in correspondence with Victoria Mxenge (soon to be brutally assassinated by an apartheid hit squad, like her husband before her), enquiring about the emerging legal bodies. Later he sent a letter from prison to Krish Naidoo, conveying his support for unity.

Mandela had a personal relationship with two key figures in the BLA: Dikgang Moseneke, a future deputy chief justice of South Africa, and Godfrey Pitje, the BLA’s founding president, who had worked in and later taken over the running of Mandela and Oliver Tambo’s law firm in the 1950s and '60s. Moseneke had been arrested and imprisoned on Robben Island at the age of fifteen for furthering the aims of the PAC. He found that the only way he could escape the extremely harsh prison life was through his mind and study. While standing around during the day, as there were no seats, and reading secretly under his blanket at night, he completed his junior certificate and matric exams. In his late teens, when he was pushing wheelbarrows filled with limestone in the Robben Island prison quarry, he would call out Latin verb conjugations to Mmutlanyane “Uncle Stan” Mogoba, an older prisoner with a flair for classical languages who had become Moseneke’s Latin tutor on the island. “I would say amo, amas, amat [I love, you love, he/she/it loves, and then] amamus, amatis, amant [We love, you love (plural), they love],” wrote Moseneke, “and he would call out the correct Latin word when I stuttered and nod approvingly when I got it right”. The Latin was necessary when Moseneke later completed a law degree with UNISA via distance learning. By that stage he’d served half of his ten-year sentence.

The attempt to create a broad front among progressive anti-apartheid lawyers in 1987 got off to a good start when Lawyers for Human Rights agreed to join the new umbrella organisation after some “relatively easy” meetings with the steering committee. However, discussions with Godfrey Pitje, Dikgang Moseneke and others from the BLA proved to be more complicated. Firstly, there were clearly ideological differences, as the BLA was inclined more towards the thinking of the BCM, PAC and Unity Movement than the ANC and UDF. Secondly, the BLA was not keen to give the LHR equal status from the outset. According to Krish Naidoo’s account, the BLA argued that it and SAADEL should “join forces and then absorb the LHR on our terms”. Thirdly, the BLA felt that since SAADEL was a “pressure group” rather than an organisation, its supporters should join the BLA as individual members. Finally, the issue of the BLA holding on to its property and resources remained a sticking point.

After a few months of interaction, which set back the planned formation date, the BLA nevertheless agreed to come onto a joint steering committee to form a single organisation of progressive anti-racist lawyers. A constitution was drawn up for the new body, which was to be given a different name: NADEL instead of SAADEL. However, the consensus between the groups had not been sustained. The BLA successfully argued that the elections for the executive should be decided by a vote of all those at the founding meeting, despite pleas for representation for each of the different bodies on the new executive committee. The BLA also sought to exclude white males as the law dictated they had to do military service in the SANDF. The other constituent bodies placed an ultimatum before the BLA: NADEL membership would remain non-racial or they would not become part of it. The BLA backed down on this and NADEL was launched with a non-racial membership at a founding meeting in Durban on 1 May 1987. The BLA was strong enough to dominate the elections for the leadership. Only Dullah Omar (vice-president) and Ismail Ayob (secretary) from the “progressive alliance” steering committee made it onto the executive committee. Advocate Dumisa Ntsebeza became NADEL’s first president.

The elections were a blow to the ANC. Zola Skweyiya wrote to Oliver Tambo on 4 May conveying the “shocking news” that the ‘DLCA received a report that none of its people or members of the progressive alliance was voted on to the National Executive body’. Moreover, it also had a new name and was no longer SAADEL, as had previously been decided on in the planning with the ANC. Skweyiya told Tambo: “We believe the situation warrants a discussion of the organisation and its leaders ...  at your earliest convenience.” Copies of the letter were sent to the PMC and ECC heads, Nhlanhla and Stuart.

Skweyiya then called Langa, Mlaba, Linda Zama of the DLC and Motshekga of the DLA to Harare for a post-mortem within a fortnight. The DLCA reported back after this dissection that “the elections were vigorously fought on political alliance” and that the “progressives” had been caught off guard and unprepared. A plan was hatched in Harare to seize back control from what was termed the “conservative alliance”. Meanwhile a middle course would be taken with NADEL. The ANC would explain to its international allies and funders that it would be adopting a wait-and-see attitude to the new organisation while attempting to quietly block international travel opportunities, contacts and funding for its executive, while promoting figures from the progressive alliance instead. So although the ANC had deepened its organisational links with UDF-aligned comrades, a political struggle for control in NADEL had commenced. At the next conference in 1988 Pius Langa and Dullah Omar were voted in as president and vice president, turning the power balance around.

The ANC’s links with NADEL and these two leaders were significant, strengthening the ANC’s constitutional planning capacities considerably in the years to come.

• Extract provided by Penguin Random House