POLITICS

The Malherbe Paper -- How De Klerk Was Swayed

The Malherbe Paper, drawn up by NP legal advisor Rassie Malherbe, laid out arguments why the party could not afford to snub the Constitution.

13/12/2016 19:23 SAST | Updated 14/12/2016 06:22 SAST
Media24 Archive
President Nelson Mandela addresses the Constituent Assembly on 8 May 1996, when the draft constitutional text was adopted.

The Malherbe Paper argues that even though there are issues outstanding, enough gains were made, clauses agreed upon and rights retained to enable the National Party (NP) to support the draft constitutional text.

These include:

  • Basic democratic principles upon which the new order is found, like regular, multiparty elections,
  • The rule of law and an independent judiciary,
  • Three levels of government and
  • A bill of rights.

Beyond that, the NP was successful in convincing their political opponents about a number of issues, including:

  • The two-thirds requirement to change the Constitution,
  • The reference to "God" in the preamble,
  • The retention of the name "Republic of South Africa",
  • Proportional representation,
  • Protection of minorities' role in the legislative process,
  • The Judicial Service Commission,
  • Mother-tongue education,
  • The entrenchment of local government,
  • Executive accountability,
  • The Constitutional Court,
  • Eleven official language and
  • A strong role for opposition parties.

There were, however, some things they were unsuccessful with, the four agreed, like:

  • The adoption of two national anthems,
  • Single-medium education (including universities),
  • The death penalty and
  • The banning of abortion.

"The possibility remains, however remote, that we will be able to make progress around single-medium education, land reform and the lock-out clause before Wednesday. This door will close if the NP announces it will not support the draft Constitution," the document reads.

"There were always those in the NP who wanted to disrupt the process and agitated for De Klerk to leave the Government of National Unity (GNU)," Roelf Meyer says. Leon Wessels contends that faction "was looking to smash the process".

There were always those in the NP who wanted to disrupt the process and agitated for De Klerk to leave the Government of National Unity.Roelf Meyer

Meyer – who is despised in certain circles because of the NP government's earlier concession to universal franchise – says the conservative faction was generally critical of the ANC government and the Constitution, and that it wasn't always based in logic or merit. "They just wanted to break up the GNU."

"There was no doubt we made enough progress during the negotiations in order to satisfy our constituency," says Meyer. "The Malherbe Paper is a clinical analysis, without political motivation, of the balance sheet. The arguments against voting for the Constitution simply did not make sense."

The Malherbe Paper is a clinical analysis, without political motivation, of the balance sheet.Roelf Meyer

Both Wessels and Meyer acknowledge the gravity of the night. If they weren't able to convince De Klerk to take the NP caucus with them, all the negotiated compromises and the carefully crafted consensus would go out the window and a national referendum would be called. That would mean a draft constitution, which would have been tabled solely by the African National Congress (ANC), would be put to a simple national vote. A jittery rand and an economy under pressure didn't help either.