Mr. Speaker:

As provincial legislature of KwaZulu Natal debates the adoption of a Constitution for our Province it is incumbent upon me to motivate for the record the IFP’s absence in these deliberations.  The reasons for our absence have long been known to both the Speaker and the Chairman of the ad hoc Committee on Constitutional Affairs, who have both received copious correspondence on the matter.  Such correspondence was carbon copied to all the Chief Whips and the media.  Whoever, in the future, wishes to reconstruct the betrayal and manipulation of this constitution-making process will be able to access such documentation. For this reason, I formally request the Speaker to ensure that such documentation is maintained within the archives of this parliamentary institution.

A constitution must be all-inclusive, underlining an all-inclusive social compact produced through the legitimacy of an all-inclusive process.  This process started from erroneous premises which this House sought to correct.  When the Premier introduced an adoption ready draft provincial constitution for our Province, as if it were an ordinary Bill, this House correctly designed a new process directing that the ad hoc Constitutional Committee should proceed in its work from scratch, and on the basis of the submissions of all political parties which had to be treated equally.  However, this process soon went astray and ended up where it started. 

Even though the ANC does not have the majority to adopt a constitution, it usurped the power to control the constitution-making process.  In any parliamentary process, the same majority required to pass a Bill, rule or resolution, is also required to make decisions relating to their adoption.  A Chairman of a Portfolio Committee is appointed by simple majority because such a majority can conceivably adopt a Bill introduced by such Committee.  This did not apply in this case

Whoever controls the process has the power to manipulate its outcome. A simple majority controlled this process and manipulated its outcome. We need to look no further to prove this statement than in the Report of the Committee before us today, which states that the document before this House is “in effect an amended version of the draft Provincial Constitution tabled by the Premier”. How did we get to this?  We got to this, by the ANC carefully manipulating the process to push the IFP out of it, violating any rule of fairness and decency!

In a process of this nature legal advisors play a fundamental role. For this reason, it was agreed that legal advisors would act independently and would be available on the same basis to all political parties. However, after the panel of constitutional experts was appointed, it fell under the exclusive control of the ANC’s Chair of the Committee, who ruled that no one else but him could interact with the panel, direct its work and give it instructions. Effectively, the panel of experts, instead of serving the process and the political parties involved in it, ended up serving the Chairman of the Committee and his political agenda, which was that of returning to this House that which the Premier had previously tabled.

In this context and for this purpose, without our approval, and over our objection, the Chairman instructed a panel of experts to review the constitutionality of the proposals submitted by the various political parties without any contact whatsoever with such political parties.   It was an absurd exercise, conducted in an absurd manner and the experts themselves, throughout their Report, acknowledged and lament this.  No judge or court of law would pass a judgment on the constitutionality of a law, or the validity of a regulation, or a even a contract without the benefit of written submissions and oral arguments aimed at interrogating and teasing out the implications of such written submissions.  

The panel of experts protested that the instructions it received forced it to act in a manner which was unprofessional and to adopt what the panel itself styled as an excessively cautionary and conservative approach. The experts effectively disqualified their own Report by indicating that it was a draft which required interaction with each political party concerned in other to be reviewed. The IFP requested the possibility of making written submissions and oral arguments. However, that was already a flawed exercise, because the experts had already applied their minds to the matter, and had somehow prejudged it, to the point that the Chairman of the panel openly stated before the Committee that he was not likely to change his mind on his positions, no matter what arguments the parties may have put forward.  Behavior of this nature would disqualify or force the recusal of a judge in a court of law.

The Chairman of the ad hoc Committee and those giving his instructions were pursuing a minimalist agenda, reflecting the initial Bill tabled by the Premier.  Therefore, for them, the only purpose of involving the experts was to knock down as much as possible of other parties’ proposals. 

The Holy Bible rightly states that one is to know them by their fruits.  The fruits tabled before this Committee are not the fruits of the process but they are, as the Report correctly states, the original Bill tabled by the Premier.  The process was a mockery!  The vast process of public participation conducted throughout the Province raised a large number of issues, wants and aspirations which have not even been registered in what is now before this House.  The people have spoken and this Parliament has chosen to not listen to them.

We sought to rectify this lamentable state of affairs first by requesting that the same majority required for the adoption of a constitution be required to finalize any significant process proposal.  When this was rejected we suspended our participation indicating that we would resume once an all-inclusive agreement on the process was reached.  We were responded to with an ultimatum and silence, making the loud statement that the process belonged to the ANC and its chosen chairman.

The Chairman of the ad hoc Committee and the majority supporting him took the decision that our participation was not necessary.  This reflects the same ANC attitude used at the World Trade Centre when a notion of “sufficient consensus” was adopted to signify that the consensus of the IFP was not necessary.  The ANC allied itself with the then reprehensible National Party to finalize a constitution without the IFP, which then had to be substantially amended to secure our participation in the democratic process.  It was by virtue of the amendments secured by the IFP that provinces were established during the 1994-1995 interim period and their existence was entrenched in the Constitutional Assembly.  It was because of the IFP that a large number of constitutional guarantees, freedom and liberties were entrenched.  Those who doubt it, just need to spend a few hours comparing text of the constitution finalized at the World Trade Centre at the end of September 1993 with the one finally adopted after many amendments were made to accommodate the IFP, including those made by Parliament recalled twice in March and April 1994.  

The IFP entered the 1994 democratic process on the basis of such concessions made, not as much to the IFP itself, but to the cause of freedom and democracy.  However, we also entered the process on the basis of many promises which were then broken, including the promise that international mediation on the outstanding constitutional issue would resume as soon as possible after the April 27 1994 elections and that our Kingdom would be accommodated in a constitution for this province to be adopted immediately after such elections. 

Emerging from a background characterized by the notion of sufficient consensus and broken promises, we expected to receive better and greater consideration in the Constitutional Assembly.  Yet, that was not the case and we were forced out of the Constitutional Assembly with manipulation similar to the one which took place in this very process.  As one could expect, the process finalized by the ANC and its then allied National Party in the Constitutional Assembly was faulty.  Our opposition led to its reformulation when the Constitutional Court failed to certify it.  We have long maintained that the second constitution adopted by the Constitutional Assembly was equally faulty, as it substantially diminished powers of functions and provinces and failed to protect the powers, authority and functions of traditional leadership.  History proved us right on both counts.  However, the second time around the Constitutional Court obliged the government in power and let the draft, no matter how faulty, go through. 

Against this background we hoped that in this provincial constitution-making process our participation would rightly be recognized as a necessary one.  Yet, this has not been the case.  The Chairman of the ad hoc Committee went so far as unilaterally ruling that we could not provide oral arguments to the legal experts in support of our written submissions, even though our written submissions clearly indicated that they were a mere outline for discussions we intended to have with the experts, like heads of argument in any court prepared presentations at a hearing. 

One can set aside technical and procedural aspects of this process to see equal fundamental flaws in respect of the merits of the matter.  At the outset we raised the question why this draft present constitution should not record, reproduce and incorporate any aspects of the provincial constitution that this very legislature adopted a mere nine years ago, when on March 15, 1996 unanimously passed a constitution for our province and which were not to objected by the Constitutional Court.  We sought a preliminary undertaking to what was agreed to nine years ago would remain agreed to.  Why we do not have a bill of rights, cultural councils, a consumer protection commission, a privatization commission or many other institutions or provisions we agreed to nine years ago and which neither the Constitution Court, nor our panel of experts, find legally objectionable in any way?  We do not have, not because the people of this province do not want them, but because the ANC political masters in Pretoria and Cape Town want a minimalist approach to our constitution-making not to be poetically outdone.

All provisions were agreed to be part of a constitution which should have remained the fundamental social compact of our province for many generations to come.  It is unconscionable that what was agreed to nine years ago, would now be forgotten. Yet, in the text now before this House, all that which was agreed upon nine years ago and not objected to by the Constitutional Court does not appear.   No-one has had the decency to explain to the Nation why this should be the case.  This is manipulation in the extreme.  This process has been a mockery of constitutionalism and really undermines the dignity of this House and that of our Province.  Nine years ago, we spent eighteen months of intense negotiations and millions of taxpayers’ money to agree to various provisions to form the fundamental framework of governance in this province and the ANC has acted in this process and throughout all its submissions as if it had never agreed to anything nine years ago.  It is pathetic, it is sad; it is treacherous to the extreme.

Yet, the most evident evidence of the manipulation of this process surfaced in respect of the Monarchy.  With the exception of the extension of the Cabinet, the only purpose of the provincial constitution produced by the Committee is that of making some provision for the Monarch, not for the Monarchy or the Kingdom, but for the Monarch alone.  Since the outset there has been a clear difference of views between the IFP and the ANC in this matter.  For this reason it was essential to the integrity and legitimacy of this process that all different views be acquired. 

On March 18 the ad hoc Committee agreed that members of the Royal House would be afforded an opportunity to be heard to put forward the Kingdom’s case.  Some members of the Royal House were in attendance in the March 22 hearing merely because it preceded the extended meeting of the House of Traditional Leaders later that day, but did not have an opportunity to be heard when the Chairman of the House of Traditional Leaders made his presentation.   On that occasion they signaled their intention to make their own separate presentation, and were assured by the Chairman of the ad hoc Committee that there would be a special hearing in Nongoma for the Zulu Royal House, and members of the Royal House indicated to him that they would be available on such an occasion. 

However, a few days later they were informed that the King asserted that the Nongoma hearing was requested by him and no member of the Royal House should be allowed to make presentations.  Later it was decided that the hearing was not to be held in Nongoma but in the Durban City Hall, and it further decided to hold a separate hearing for members of the Royal House in Pietermaritzburg on the 4^th.  However only some, and not all, relevant members of the Royal House were then notified, and this was done only on the 2^nd, giving some of them less than 72 hours notice.  Some of the relevant role players were reached by such notification after that date.  As they live in different regions and would have needed time to prepare common submissions, less 72 hours notice was blatantly and intentionally insufficient.

The only real controversial issue before the Committee relates to the Kingdom as opposed to its Monarch.  This was not a secondary matter.   On April 6 a few members of the Royal House went to the City Hall of Durban and were told that they were not allowed to make a presentation.  Only the King and Prince Thulani made presentations, and their presentations were insufficient as they only addressed issues relating to the Monarch, rather than the Monarchy and the Kingdom.  Moreover, the King’s delegation only comprised of his children and a few Princes rather than representatives of all the members of the Royal House.  Of his own accord and without the support of his Committee, the Chairman of the ad hoc committee ruled the closure of the hearing indicating that the King did not want anyone else to speak and stating that he was under pressure from His Majesty.  On that occasion he indicated that members of the Royal House would be given another opportunity.  However, on April 11, he proceeded to notify members of the Royal Family that they could no longer be heard and that all hearings in this constitution-making process were completed and closed. 

The report from the ad hoc Committee states clearly that the document before us “largely mirrors the corresponding provisions contained in the national Constitution of the Republic of South Africa”.  The only two differences are first that increases the size of the Executive Council, in respect of which there is little disagreement amongst the parties, and second that it established legislative recognition of the roles, status and powers of the traditional monarch.  In this latter respect there are profound disagreements yet the viewpoint of those holding positions different from the Premier was not even heard.  There could have been no more blatant manipulation of this process and this forced the IFP to abandon it, not to provide it with a legitimacy it  does not deserve. 

Members of the Royal House were silenced to the point that the only place where they could make their input was not before the Committee of this House but in front of the entire Nation during the Imbizo held on the 21^st May.  I hereby request the Speaker to acquire the submission of Members of the Royal House at such Imbizo and make part of the proceedings of this constitution-making process for future reference.  It is reprehensible that this Parliament refused to listen to what was said before the entire Zulu Nation and it forced members of the Royal House to appear before the Nation as the only platform from which they could make their viewpoint known and heard.

Further manipulation of this process became clear when evidence emerged that the ANC national leadership was formulating submissions.  Members of the Royal House disclosed that a workshop was held for them under the guidance of Advocate Zam Titus, who is not part of our province and is a national ministerial advisor with no business in being involved in this process.   There are also indications that he formulated His Majesty’s presentation to the Committee in which he spoke of himself but not his Kingdom.

Let us tackle the issue.  We do not want His Majesty to be a King without a Kingdom.  The Kingdom of KwaZulu comprises of much more than His Majesty.  It includes the Traditional Prime Minister, members of the Royal House, Amakhosi as well as an extensive body of legislation, customs and traditions which organize and govern the lives of millions of our people.  Without all of this our Kingdom is nothing but an empty name.  Amakosi and the laws of our Kingdom were recognized and protected in our provincial constitution of March 1996.  But none of this was even accepted as part of the discussions to be held during this process.

After the silencing of Members of the Royal House, the IFP saw no purpose in continuing this facade.  It was obvious that the ANC had already decided the outcome of this process.  For instance, the ANC would have never considered recognizing the office of the Traditional Prime Minister, even though such office exists in reality and ought to be registered in legislation.  It is disastrous legislative and constitutional practice to leave a centre of such magnitude of power outside the regulation of a constitution, especially when this is one of the cornerstones of our Kingdom.  The ANC has been consistent in this respect since when Deputy President Jacob Zuma was a Minister in this Province and led a pathetically unsuccessful attack in the Constitutional Court against our legislation, which presently recognizes the Traditional Prime Minister as one of the components of the House of Traditional Leaders, which the Bill on traditional leadership pending before this Houses poses to repeal.

He even sought the assistance of His Majesty.  His attack failed dismally and the Constitutional Court vindicated the competence of our Province to regulate the position of a Traditional Prime Minister.  Yet, the ANC’s political agenda seems to be oblivious to any fact or reason.  It is clear that there is no scope to engage the ANC in a serene and rational discussion on the matter as they are so blinded by their hatred towards the incumbent to accept the institutional merits of the position of Traditional Prime Minister.  We saw that clearly when our Minister for Local Government, Housing and Traditional Affairs branded the book Mzala who is a member of the ANC’s National Executive Committee as if it were a gospel that proved that the office of Traditional Prime Minister does not exist.

We cannot be part of such a twisting of history which insults our people, our nation and the pride of our province.  We have constantly upheld constitutionalism and are saddened that this constitution-making process has been so undermined by the ANC to turn it into a farce. In terms of the national constitution, only a provincial constitution and not a provincial or even a national law can make provision for the Monarchy.  This is because the national Constitution rightly regards the matter of the Monarchy as one which requires broad-based consensus and should not be an object of manipulation by any given majority.  By closing the debate on this matter, the ANC has achieved this hidden objective which is that of undermining the Monarchy.  It sought to accommodate His Majesty at the expense of the Traditional Prime Minister, the traditional leaders, the Royal Family and indeed the entire Kingdom. 

History has plenty of examples where the accommodation of the King was sought to destroy his Kingdom.  However, we cannot be part of treason against the Zulu Nation and the final betrayal of the many promises made.  This is the culmination of a process which began with the dishonoring of the solemn Agreement for Reconciliation and Peace.  In this draft constitution the ANC is offering to His Majesty and to our Kingdom basically the same contents it put forward during the Skukuza meeting of March 1993, which were rejected with disdain by His Majesty exactly because they addressed only the needs of the King rather than the needs of his father’s people.  The Kingdom and the Nation cannot believe that what was rejected at Skukuza can now be accepted on behalf of our Kingdom.

 Because we have pride, because we have dignity, because we love our province, because we believe in constitutionalism, because of our sense of history and because of many other reasons written in the sufferings and aspirations of our people we cannot be part of this process.  We will gladly participate in any other process which may commence from scratch once the relevant players have accepted the need of addressing real issues in mutual respect and real sense of responsibility towards the people of our province rather than political masters in Cape Town and Pretoria .