SA’s first election was saved by a Kenyan: story of Washington Okumu

SA’s first election was saved by a Kenyan: story of Washington Okumu

Reading Time: 11 minutes

by Nancy J. Jacobs, Brown University

What’s sometimes forgotten about the 26-29 April 1994 vote that installed the African National Congress (ANC) government in South Africa is that, until the last minute, it looked like violence would consume the voting process.

An 11th-hour agreement on 19 April brought the Zulu-majority Inkatha Freedom Party (IFP) into the contest. Inkatha had been boycotting the process and challenging the ANC in violent street protests.

The peaceful election brought enormous relief to the country and the world.

A Kenyan, Washington Okumu, alternately described as a professor or a diplomat, was credited with the negotiation. But few observers knew who he was.

In his memoir, the US ambassador to South Africa in 1994, Princeton Lyman, reflected on Okumu’s mysterious appearance:

It is still not clear who invited Okumu to the mediation – perhaps the OAU (Organisation of African Unity), perhaps Inkatha. In the end, no one cared.

Soon, Okumu receded from view. I vaguely remembered him because I had been with the United Nations mission that observed the election. Teaching about the election reminded me of him. In 2016, my research assistant, Aidea Downie, and I travelled to Bondo, western Kenya, for interviews. Over 13 hours of conversation, Okumu told us about his life and intervention in South Africa. He also gave us a copy of his unpublished memoir, The African Option.

Neither the interviews nor the manuscript were clear or consistently truthful, but they provided clues for further research, which filled in this history.

His is a remarkable story. He found his way to Pretoria through the efforts of Christian conservatives who expressed moral reservations about South Africa’s post-apartheid interim constitution. Their efforts got him into an international mediation team that could have suggested revisions to it. The constitution went unchanged, but Okumu became essential to South Africa’s first democratic election.

Okumu meets Vorster

Okumu made his way to Pretoria in April 1994 because of his long connection to American and British backers.

It seems he became an asset to the CIA, the American spy agency, when he was studying at Harvard in the 1950s. Returning to Kenya, he took work as a civil servant. He was imprisoned in 1968 on corruption charges. In prison, he became a Christian.

In 1971, American and British supporters found him a mid-level position at the UN Industrial Development Organisation in Vienna. This is as close as he ever came to serving as a diplomat.

While he was working for the UN, he began attending the National Prayer Breakfast in Washington, DC, then organised by a private Christian network known as the Fellowship. Its annual meeting functioned as a conservative side-channel to US foreign relations. The Fellowship was seeking to protect southern Africa from communist influences, which meant supporting the apartheid government.

Mangosuthu Buthelezi – the leader of the KwaZulu homeland in South Africa who founded Inkatha as a cultural organisation in 1975 – also attended. Okumu said they became friends there.

The Fellowship arranged for Okumu to travel to Pretoria in 1976 to meet prime minister BJ Vorster, who was attempting overtures to the rest of Africa. Okumu carried a message from Vorster to Tanzani President Julius Nyerere. Nyerere, however, was unwilling to negotiate with the apartheid government.

Okumu lost his UN job in 1985. He had a few years of irregular employment, including a temporary position as a lecturer, which is the closest he ever came to being a professor.

The Christian push

In 1988, Okumu took a position with the Newick Park Initiative, a UK thinktank founded by social entrepreneur Michael Schluter to promote Christian principles in post-apartheid South Africa.

The Newick Park Initiative believed federalism was “distinctly Christian” because it “recognized the fact of basic human sinfulness, and the need for restraints to be placed on any exercise of political power”. It also cautioned that individual rights should not be “used to undermine the God-given institution of the family”.

As apartheid became untenable, the Newick Park Initiative was among the spaces for “track two” diplomacy – meaning communication and consensus-building outside official channels.

In early 1990, the Fellowship and a few South African Christians, including the evangelist Michael Cassidy and the Pan Africanist Congress leader and Methodist minister Stanley Mogoba, attempted to launch talks between the South African government and leaders of southern African nations, including Zambian president Kenneth Kaunda. Two newspapers holding sympathies with the ANC, the New Nation and SouthScan, broke the story. Reports alluded to a Kenyan who worked full time for the American Fellowship; this sounds like Okumu, except for the incorrect employer. One article warned of “white men planning an ambitious ‘black-led’ initiative to start negotiations on the future of South Africa”.

Newick Park Initiative documents record that in 1991, the thinktank floated a proposal to host a summit between Buthelezi, South Africa’s President FW de Klerk and ANC leader Nelson Mandela. Okumu met Buthelezi in London to discuss the possibility. Nothing came of this effort.

The constitutional dilemma

The constitutional negotiations between 1991 and 1993 were difficult.

The ANC favoured a unitary government, while the party of the apartheid government, the National Party, favoured federalism. Like the National Party, the Inkatha Freedom Party preferred decentralisation, with ethnically based provinces, but it also wanted a voice equal to that of the two major players.

The IFP delegation walked out of negotiations in June 1993 and never returned. While Inkatha dreamed of the Federal Republic of South Africa, the ANC and National Party were agreeing on a government with weak provinces.

The interim constitution worked out by the ANC, the National Party and smaller parties in late 1993 defied some conservative Christian values. The bill of rights endorsed the principle that the new South Africa would be antiracist, and also outlawed discrimination against sexual orientation and gender. It gave only passing mention to the divine.

Despite concessions, the IFP refused to join the election. The political impasse was dragging the country into civil war. From July 1993 through April 1994, an average of 461 people died every month in political violence.

A last-ditch effort

As the election drew nearer, plans emerged for Henry Kissinger and Peter Carrington (former US secretary of state and UK foreign secretary, respectively) to mediate a last-ditch effort to convince the IFP to join the contest.

The international team included constitutional experts from Italy, India, Canada, Germany and the US, but no Africans. The evangelist Cassidy and the Newick Park Initiative’s Schluter recognised this as an opportunity and began advocating for Okumu’s inclusion. Okumu flew to South Africa to present himself to the ANC and the IFP. On 8 April 1994, Okumu was named a “special advisor” to the team.

The international team arrived on 11 April. The terms of the mediation were not yet settled. Was the possibility of postponing the election on the table? The ANC and the National Party insisted on excluding that outcome, but the IFP refused. On 14 April, the mediators left without having begun substantive negotiations. It was 12 days before the scheduled election.

On the day the Kissinger-Carrington effort failed, Okumu phoned Cassidy to tell him he was returning to Kenya. But Cassidy told him to stay. That evening, Buthelezi put Okumu in touch with two white advisors: Danie Joubert, the deputy secretary general in the KwaZulu government, and Willem Olivier, an advocate. Okumu recorded that they worked out a plan for convincing Buthelezi, but he did not note particulars.

The following morning, Okumu met Buthelezi at Lanseria Airport in Johannesburg. Buthelezi’s plane had already departed but then returned, ostensibly because of a malfunctioning instrument. It was a false alarm. Perhaps Buthelezi heard Okumu was waiting there for him.

Okumu recounted drawing on lessons from African politics to caution Buthelezi that he had no future outside the first democratically elected government. Buthelezi had heard these arguments before, but that morning he agreed to follow Okumu into negotiations.

Having gained Buthelezi’s confidence, Okumu, Joubert and Olivier connected with Colin Coleman of the Consultative Business Movement, the organisation that had facilitated the international mediation. Coleman drew in the ANC. Over the next four days, Okumu moved to the centre of the final negotiations that put the IFP on the ballot.

Cassidy held a mass meeting in Durban, the centre of IFP support, to pray for peace.

At a press conference on 19 April, Okumu served the honoured role of witness to the memorandum of agreement signed by Mandela, Buthelezi and De Klerk that provided for the IFP to join the elections. He received credit for averting calamity.

The substantive provisions in the agreement were that the IFP would enter the election, that all would reject violence and that the parties would

recognise and protect the institution, status, and role of the constitutional provision of the King of the Zulus and the Kingdom of KwaZulu.

An amendment to the interim constitution would reflect this. Finally, “any outstanding issues in respect of the king of the Zulus and the 1993 Constitution” would be subject to further international mediation.

What worked?

The ANC and National Party had offered recognition of the king once before, on 10 April, but the IFP had rejected it. What changed in those nine days? What brought Buthelezi around?

Okumu asserted his mediation was successful because he brought an “African solution”. News reports claimed it was his connection with Buthelezi through Christian circles that made the difference. But closer friends and other Christians surely had tried to reason with him before then.

The costs of fighting in the street, as opposed to the ballot box, certainly made a difference.

Ostensibly, King Zwelithini’s status as a constitutional monarch resolved IFP reservations, but that agreement happened at the same time as the formation of the Ingonyama Trust, a holding of 2.8 million hectares of Zulu traditional land that would be vested in the king of the Zulus and not the national government.

When the news broke, the ANC expressed shock and observers speculated about a secret bargain to bring the IFP into the election.

Okumu never mentioned it, but by providing the names of Joubert and Olivier, his memoir pointed towards evidence, pieced together by the historian Hilary Lynd, that the Ingonyama Trust was part of the package he fronted. It was not Okumu’s brainchild; personnel in the National Party and KwaZulu governments had been working up the idea.

The election was successful and mostly peaceful. The IFP won a cabinet position, yet awaited international arbitration. Okumu set up a mediation business. His memoir recounts him attempting to raise mediation with Mandela at a forum in July 1994, but the president did not give him time for a conversation. Mandela and the ANC were angered that the Ingonyama Trust was rushed through KwaZulu legislative processes without notifying them. The South African government never offered Okumu recognition.

In 1995, deputy vice-president Thabo Mbeki wrote a scathing letter to Buthelezi, dismissing the case for international mediation related to the 1993 constitution because a national Constituent Assembly was negotiating the permanent version. This was adopted in 1996, with the same expansive bill of rights and weak provincial structure.

Back in Kenya, Okumu ran for parliament but never won an election. He retreated from politics and community life. He was poor and had been isolated from his community since his wife’s death in 2011. He died in 2016, a few months after we met him.

Why was Okumu so forgotten?

Mandela’s ascension to the presidency has been taken as natural, requiring little explanation. If the ANC wanted Okumu forgotten, it worked. Did journalists leave Okumu aside because they “didn’t care” about the details or because the story of South Africa’s transition in the hands of a conservative Christian mediator was inconvenient?

Probably a bit of both. No reporters ever asked what Cassidy and Schluter hoped Okumu might accomplish. When they lobbied for him to join the delegation, they never could have expected he would be the last mediator standing. What had they hoped for?

Cassidy had criticised the “moral laxity” in the interim constitution. His and the Newick Park Initiative’s interest had been in the heteronormative family, respect for the Christian god and federalism. Okumu did not succeed in promoting these values, but they claimed his success as Christian peacebuilding.

This story is more ambiguous. A Kenyan fronting for white conservatives was essential to saving South Africa’s first democratic election. Okumu’s willingness to play a role that was sometimes at odds with the transition he assisted may not be an appealing trait, but it made a difference in April 1994. The election was broadly participatory, peaceful and accepted as valid. The constitution was a model for human rights, but implementing it required compromises.The Conversation

Nancy J. Jacobs, Professor of History, Brown University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

SA’s ConCourt at 30: a solid foundation but cracks are showing

SA’s ConCourt at 30: a solid foundation but cracks are showing

Reading Time: 7 minutes

by Hugh Corder, University of Cape Town

South Africa’s Constitutional Court stands out as one of the few government institutions that have protected and advanced the constitutional vision of a participatory democracy and social justice. Many other government institutions which ought to have allied themselves with the court have been weakened or have failed to deliver.

The court has consistently championed one of the fundamental values to be found in section 1 of the constitution, 1996. This requires that the exercise of public power be accountable, responsive and open. Despite this, but also because of it, the court faces challenges from outside and from within.

The duty of the apex court in any constitutional democracy is to deliver judgments which provide the final authority on the meaning of any constitutional provision. Thus, the manner and limits of the exercise of public power by parliament, the cabinet and any public official stand to be tested in court for their constitutionality and lawfulness. This is an exceptionally onerous authority. Those who wield it must be beyond reproach, careful not to exceed their authority.

The Constitutional Court succeeded beyond expectations in establishing its political and public legitimacy in its first 15 years since it was founded in 1994. But the second half of the democratic era has been a mixed bag.

My scholarly research has since 1979 focused on the judicial branch of government under colonialism and apartheid, and in the democratic era. I was also privileged to be a technical adviser on fundamental rights during the negotiations of 1993 to end apartheid. This involved me in debates about judicial independence and accountability in the future. I have continued to publish on these topics regularly.

The first 15 years

The court’s judgments during its first 15 years were characterised by careful, wise, fair and at times courageous commitment to constitutional principle and practice, often in challenging circumstances.

The Constitutional Court heard its first case in early 1995, with a very strong bench of 11 justices. Almost all of them had a very good sense of the political landscape.

It deliberately chose the constitutionality of the death penalty, a divisive issue, as its first case. It produced an astonishingly strong set of judgments, both collective and separate, in unanimously holding that the Bill of Rights outlawed the death penalty.

It held Nelson Mandela, the first president of a democratic South Africa, to account for the legality of his actions in highly unpopular circumstances. His opponent was a remnant of the apartheid regime, in the form of the provincial executive council of the Western Cape. The parties were in dispute about the arrangements for the first post-apartheid local government elections. Mandela did more for the legitimacy of the court than its judgments when he announced on television that he recognised the court as the final arbiter of such questions. He immediately complied with its order.

Public confidence in the Constitutional Court contributes greatly to its legitimacy. When civil-society advocacy agitates justifiably for recognition of constitutional rights, the court has the opportunity to enhance such confidence. So it was a significant milestone when the court ruled that the approach of President Thabo Mbeki’s administration (1999-2008) to the treatment of HIV/AIDS in mother-to-child transmission was irrational and unconstitutional.

On the other hand, the court recognised sensibly that there were financial and other resource limits which prevented the complete provision of socio-economic rights to health, housing and water. Some argued that the court had been too cautious. But most agreed that it had been true to its mandate and the wording of the bill of rights.

The turning point

Since 2009, the court’s record has been mixed. This period coincided with the end of the term of office of the last members of the original Constitutional Court. Most of them had deep roots in the anti-apartheid struggle, and thus an impressively nuanced understanding of the challenges facing the executive, parliament and broader society. The other factor was the accession to power of President Jacob Zuma, who subscribes to a popular majoritarian version of democracy and resents the role of the judiciary in upholding the constitutional democracy in place since 1994.

Granted, the court’s judgments have remained broadly in line with foundational constitutional values. They have generally continued to hold those who exercise public power to account. (Most prominent was the unanimous Nkandla judgment of March 2016 regarding Zuma’s use of public funds for his private homestead.) However, division of opinion among the justices has increased. And the transformative vision of the constitution has not often been advanced, particularly in the development of the common law.

What accounts for this patchy performance since 2009? Several factors seem to have contributed, among them:

  • The appointment of some less than stellar court justices. It’s a tough job serving on such a court. It requires enormous reserves of intelligence, stamina, wisdom, courage and political nuance. In addition, the court has come under unrelenting attack in the public domain, chiefly from those whose corrupt and unlawful conduct is threatened by criminal and civil process. Judges are prevented from mounting a defensive justification of their work: their judgments must speak for them. The psychological impact of these assaults on the judiciary must have had a subconsciously restraining effect.
  • Aligned with this, the Judicial Service Commission (as both appointing and disciplinary institution) has often delivered bitterly farcical recommendations. These have resulted in the appointment of the least offensive candidates, scaring off superior-court judges who would likely have been excellent Constitutional Court justices.
  • Directly related to this is inadequate leadership shown by the chief justices and heads of court, with singular exceptions. Sadly, former chief justice Mogoeng Mogoeng realised the gloomy predictions made at the time of his appointment that he had neither the temperament nor the stature to be effective. And the disciplinary journey of Western Cape judge president John Hlophe has been a blight on the legitimacy of the judiciary.
  • The failure to fill vacancies on the court promptly – when the retirement date of every justice is known from the moment of their appointment – is unfathomable and harmful. It meant that for long periods there were several acting Constitutional Court justices. This denied the court the chance to be a stable, competent and secure-in-tenure body which could establish efficient and collegial working relationships.
  • Finally, this under-capacitation of the court coincided with the expansion of its appellate jurisdiction in 2013 potentially to any question of law of general public importance, not only to constitutional matters. This has resulted in hundreds of such applications being made annually, each of which requires the court to exercise the discretion whether to hear it or not.

The wheels of constitutional justice have, as a result, turned twice as slowly as they did in the first 15 years.

In sum, the Constitutional Court has played a leading role in realising constitutional justice over the past 30 years, exceeding the expectations of many sceptics. However, many forces seek to undermine its role, and civil society needs to be resolute in defence of the court, while holding it to account and to remain true to its mandate.The Conversation

 

Hugh Corder, Professor Emeritus of Public Law, University of Cape Town

This article is republished from The Conversation under a Creative Commons license. Read the original article.