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A Journal of Crime, Conflict & World Order
Social Justice Vol. 18, Nos. 1-2 (1991)

Issue Overview: South Africa in Transition

Gregory Shank

Overview of This Issue

We believe this timely and important collection of articles provides a useful framework for understanding the ongoing changes in South Africa. The first series of articles deals with the dismantling of the legal edifice of apartheid and constitutional negotiations leading to a just dispensation for all South Africans in the context of a unitary, non-racial state. Movement and state strategies for the transition period are the subject of the second section. That material lays the basis for the next section, which addresses the manifestations of structural violence in the migrant-labor system and depressed conditions in the homelands, and the serious violence that is currently tearing the townships apart. The final section discusses the economic realities that narrow the options for a new South Africa as well as the requirements of social justice that go beyond legal equality to promote full social and economic equality. The logic of the exposition is by necessity somewhat arbitrary. It does not imply that economic matters are less important than the political agenda; quite the contrary. I have merely tried to arrange the subject matter in a way that corresponds to shorter- and longer-term priorities, and the constitutional negotiations are surely the most urgent.

In the lead article, author Albie Sachs, a prominent member of the African National Congress' Law and Constitutional Affairs Department, argues that although simple justice would demand that negotiations should exclusively concern how to dismantle the structures of apartheid, establish democracy, and correct the injustices of the past, the central issue being projected is the constitutional future of the whites. Sachs discusses the implications of the constitutional and nation-building strategies being proposed by a range of political forces in South Africa, a process that centers on the peculiarities of the South African experience but also provides insight into the solutions open to the emergent multilingual and multinational democracies in the Soviet Union and Eastern Europe. The article also addresses the prospect of expanding political and social rights in line with world developments. Sachs argues that the classic civil, political, and legal rights -- the first generation of human rights -- must be defended through the mechanisms of elections, free speech, and judicial review. The second generation of rights -- social, economic, and cultural rights -- are equally important since their incorporation into the constitution provides for the progressive materialization of rights. Similarly, the third generation of rights -- the rights to peace, development, and respect for the environment -- must be integrated into the constitution.

Until recently, South Africa's democratic movement has been reluctant to embrace a Bills of Rights -- an attitude that might be expected in a country lacking a tradition of constitutionalism, where basic rights have been denied, and where the victims of apartheid have been exposed to the exercise of unmediated power. As Nicholas Haysom, a member of the ANC's Constitutional Committee, notes in his introduction to the accompanying working draft for an ANC Bill of Rights for a Democratic South Africa, to date Bills of Rights have been projected as an attempt to frustrate the exercise of political power by the majority. The current emphasis on constitutionalism recognizes the centrality of a participatory democracy for a thorough transformation of South Africa, the existence of full political and other rights as a condition for such democracy, and the importance of creating inclusive and stable political institutions.

In "Remaking the South African Legal Order," D.M. Davis analyzes the premises underlying the debate on democracy and the rule of law. He notes that although liberalism was politically defeated with the complete ascendance of racist policies by 1948, the ideological alternatives to the liberal principles of justice and rights never took hold. As apartheid as an ideology supporting National Party policy lost its coherence, the government adopted the language of rights and the rule of law; by the end of the 1980s, a consensus -- from Nationalist Minister of Constitutional Development, Dr. Gerrit Viljoen, to South African Communist Party leader Joe Slovo -- had formed around the discourse in favor of rights as the basis of democracy. Davis examines whether this broad unity in favor of multiparty democracy and a rights-orientated constitution is rhetorical or real. After outlining the existing legal order and its relationship to the rule of law, he deals with the necessary conditions and requirements for achieving a rights-orientated society. The article covers the central features of the debate in South Africa on a Bill of Rights and focuses on the limitations of liberal legal models -- especially their concentration on individualist rather than collective interests and their compatibility with more subtle forms of class domination.

The next set of articles analyzes various aspects of movement and state strategies in the struggle to affect the course of the transition to a post-apartheid society. They begin at the level of international law and sanctions and move to the challenge of remaking the criminal justice system. John Dugard's article on the role of international law in liberation struggles is an important contribution to the literature because it details the history and effectiveness of using international sanctions to apply pressure against egregious violations of human rights, thereby promoting the peaceful resolution of conflict. The author examines the role that international law and the United Nations have played in bringing the National Party to the negotiating table and the role it can play in the process of transition. The world community's definition of apartheid as a "crime against humanity" and as a "special international crime" raises the question of whether the architects of apartheid or those responsible for executing its most brutal features will be granted amnesty or tried before tribunals applying the principles of Nuremberg. Unlike attempts in post-"dirty war" Argentina to prosecute acts of state terrorism, or the practices of some transitional governments in Eastern Europe in calling former state leaders to account, the conciliatory approach taken by the ANC and the National Party government to date suggests that no such trials will take place, as does the granting of amnesty to members of the ANC convicted of serious crimes.

A companion piece to Dugard's contribution is "The Death Penalty in the Context of Commission of Crimes against Humanity in South Africa," by Munyonzwe Hamalengwa. Hamalengwa details the instruments in international law that have made apartheid a crime against humanity and outlawed racial discrimination, making such practices violations of international law, and under apartheid, an international crime. These international conventions can play a future role in helping to insure a just dispensation for all South Africans.

The article also discusses the relation of torture to the practice of judicial murder, which contributed to giving South Africa one of the highest execution rates under the death penalty in the world. The author hopes that the reforms instituted in 1990 will mean the end of the death penalty there. President de Klerk announced the suspension of executions, although judges can still pass the death penalty; the government also scrapped the mandatory death sentence for murder and promulgated an amendment granting condemned prisoners automatic right of appeal, as well as allowed people already on death row to petition the president for clemency.

Mark Phillips and Laurie Nathan examine the changing role of the South African Defence Force (SADF) and South African Police (SAP), collectively known as the security forces, during the transition period. This article discusses the historical function of the SAP and SADF and the nature of state security policy; the profound changes in state strategy introduced by President de Klerk, and the implications of these changes for the security forces and their response; the possibilities and problems associated with transforming the police and military; and alternate approaches to security in the post-apartheid era. There is an interesting discussion of proposals made to transform the police from a partisan force lacking in legitimacy because of its role as a guarantor of racial inequality to one using normal international standards of policing. De Klerk's crime prevention policy was accompanied by a proposal to decentralize the force. Following "Inkathagate" and consequent demands on de Klerk to purge the recalcitrant security-force presence in his government, other proposals on the establishment of independent or all-party monitoring groups and the integration of members of the ANC's army into the SAP have taken on more urgency. Similar measures must be taken with the SADF. According to the authors, the current debate on the future of the Defence Force hinges on the possible integration of the SADF and Umkhonto we Sizwe (MK). Negotiations should lead to formal integration of the SADF and MK, with senior MK soldiers being promoted to command positions in the new army. The Bantustan armies should be integrated into the new Defence Force and the situation of other armed forces, such as that of the PAC, should be either integrated or dissolved in order to stabilize the situation and guarantee a lasting peace.

A companion piece by Keyan Tomaselli and P. Eric Louw (both from the Contemporary Cultural Studies Unit at the University of Natal) analyses the manipulation of the media in the framework of the war strategy of the SADF. The authors examine the idea of "total war" and its Cold War antecedents, and discuss how people make sense of the world. They then offer a case study on disinformation involving the South African Defence Force's attempt to discredit the End Conscription Campaign using the media and compliant academics. This form of media analysis has proved to be of enduring importance as the revelations of the "Inkathagate" scandal have once again highlighted the perilousness of relying on disingenuous official sources.

As one of the key forms of governance, the criminal justice system will both reflect and give shape to a democratic transformation of South African society. In "Democratizing the Criminal Justice System in South Africa," Nico Steytler describes democracy as an overriding necessity both to end the present repressive legal order and to guard against its future recurrence. By calling for all organs of government, including justice, security, and the armed forces to be representative of the people as a whole and democratic in their structure and functioning, the ANC's Constitutional Guidelines have made democratization an explicit goal. Steytler attempts to clarify the meaning of democracy and to explore what the democratization of criminal justice might entail in terms of the revamping the police and courts. The article examines the applicability of both the Western liberal democratic and African socialist traditions for criminal justice.

Steytler warns that a strong centralized government will be needed in a post-apartheid South Africa to counteract deeply ingrained divisions and vested interests, leading possibly to authoritarian rule with few limitations on governmental power. Any governing coalition will tend to use law instrumentally in the short term, with various degrees of repression, to achieve its social goals and to control political adversaries. The legacies of the apartheid legal order -- executive governance, a supplicant judiciary that subordinates procedural justice and the protection of fundamental rights, and a factional and fractious polity -- could undercut a democratic ethos and prevent a new government from unequivocally implementing a democratic justice system. The danger exists that the new order could seamlessly absorb the traditional juristic techniques practiced under apartheid. Steytler cites the example of Zimbabwe, where the revolutionary government settled comfortably into the repressive security apparatus created by the Smith regime, to warn that this could also be facilitated in the South African transition period by adopting the present draconian security laws. The post-1974 Ethiopian example is also given because the penal code was largely extrapolated from prerevolutionary juristic techniques while executive governance was introduced at the expense of individual freedom.

State violence rests structurally on the inequities of apartheid as a socioeconomic system. The government's Bantustan policy and forced relocations, predicated on creating a low-wage migrant labor system, has torn black family life asunder, institutionalized single-sex hostels, and given rise to endemic rural underemployment, high urban crime rates, and malnourished children in inadequate housing. In "Between Verwoerd and the ANC: Profiles of Contemporary Repression, Deprivation, and Poverty in South Africa's 'Bantustans'," Eliphas G. Mukonoweshuro provides the background required for understanding the political and economic role of the Bantustans and the necessity for their reintegration into a unitary non-racial state. In a companion piece, Gerhard Maré analyzes the particular instance of the KwaZulu homeland -- Inkatha's base of operations. Maré, the author of the authoritative book An Appetite for Power: Buthelezi's Inkatha and South Africa, traces the history of the violence in Natal and chief minister Mangosuthu Gatsha Buthelezi's role in negotiating a political peace. Inkatha distinguishes itself from other anti-apartheid forces because as a regional (homeland-based) organization it exercises governmental functions: it dispenses patronage and controls repressive forces with a legitimacy that derives from their links to the central state. The power emanating from its function as an instrument of apartheid policy is the material basis of Inkatha's opposition to reincorporation into South Africa as part of a unitary (not a federal) state. It is also the basis for Inkatha's bitter competition with the ANC, since the latter could more effectively represent the Bantustan constituencies at the national level.

While Maré debunks the notion that the current violence in South Africa is indiscriminate "tribal" or ethnic warfare or "faction fighting," Lloyd Vogelman and Gillian Eagle seek approaches to overcoming endemic violence against South African women. The authors examine the incidence and causes of violence against women in the form of rape and attempted rape, battery, and other forms of physical assault. The authors argue that part of the problem stems from the general powerless of women in African society, even in anti-apartheid organizations such as the ANC and PAC, where women are often in the minority or marginalized. They conclude that one of the most important ways to reduce violence is to attempt to rebuild local-level organizations such as the street committees and civic organizations that were largely crushed by the National Party government in 1987. Local leadership figures concerned with the problem of violence against women must active promote a culture of social non-acceptance for those who abuse women. Clearly, popular political organizations such as the ANC, which are struggling to develop grass-roots structures and to assert their vision of the world and of appropriate social conduct over many of their supporters, should play a central role in this process.

The final section, which deals with economic realities and the requirements of social justice, begins with Pieter le Roux's overview of the South African economy and the democratic imperative. In language that is very intelligible to non-economists, le Roux argues that the economic crisis facing South Africa calls for a fundamental restructuring of political-economic life there. The article lays out how apartheid, by excluding black South Africans from fully participating in the economic and political systems, fatally undermined the economic potential of South Africa. Le Roux shows that the problems of the South African economy are structural and cannot be blamed on external factors such as sanctions or disinvestment campaigns. Although the inequality of income distribution in South Africa today is among the highest in the world, le Roux believes that a Scandinavian-style social democracy is a real historical possibility and would constitute a compromise between right-wing fears and left-wing aspirations for South Africa's economic future.

A companion piece by Steven Gelb -- who recently coordinated the Economic Trends Research Group, which conducts research for COSATU -- discusses the debate about strategies for democratizing economic growth in South Africa. The analysis takes into account both redistribution (the need to redress the extreme inequalities in distribution of income and wealth, and the related disparities in living standards) and the severe decline in South Africa's economic growth performance over recent years as a result of the economic crisis. The author elaborates on the emergence and stagnation of a growth model called "racial Fordism," which has relied upon racial domination as the preeminent factor shaping economic institutions. One effect of this stagnation has been the transformation of the imagery of the South African economy from a site of "superexploitation" yielding "superprofits" to an economy increasingly abandoned as a locus of operations by multinational corporations, whether foreign or South African, because of high costs and poor profitability prospects. I believe that this article makes a vital contribution to understanding South Africa's future, not the least because it provides an alternate approach to restoring economic growth, one that is being debated and developed within the ANC and its allied organizations.

It is well known that the schools in South Africa became a major locus of struggle. Education will play an equally central role in the economic transition to a post-apartheid South Africa. Bantu education was designed to educate black South Africans to remain slaves in the land of their birth. The denial to Africans of a technical education and the consequent shortage of skilled and well-qualified workers will likely rank among the most serious legacies of the apartheid era. In their article, Alan Morris and Jonathan Hyslop discuss the origins of the crisis in the education system for African people, which is today in a state of collapse. The authors describe the government's attempt in the 1980s to recast its policies in such a way that racial domination could be maintained by accepting the existence of a permanent urban African working class and fostering the creation of privileged black strata that would be supportive or neutral toward the state. Consequently, they warn against taking a technocratic approach, with its focus on the need for education to underpin economic development and reliance on increased expenditures for black schools. Instead, post-apartheid education must begin with the total scrapping of the racist organization of schooling. Among other challenges, a successful transition period will require overcoming the illiteracy affecting a clear majority of the black adult population. As in other crucial areas, there are no easy solutions, but a post-apartheid government must create a just, efficient, and acceptable education system. It is South Africa's future that is at stake.


I would like to thank the following people for helping to make this issue possible during a momentous but difficult period: in Johannesburg, Lydia Levin of the Center for Applied Legal Studies for her pertinent information and Gilbert Marcus for useful discussion; Nicholas Haysom and Mark Phillips for their editorial assistance; Marion Baker and Kanti Parshotam for their insights and generosity; in Durban, P. Eric Louw, Rose, and Mark Broomhead for their generosity, many laughs, and arrangements; and Ari Sitas for editorial suggestions; and in Cape Town, thanks to Harold Idesis, Patricia Baker, Dennis Davis, Nico Steytler, Wilfed Schärf, Derrick Fine, Dirk van Zyl Smit, and John Murphy; thanks also to Jerry Dekker, Judy Labarca, and Bob Gould.

Citation: Gregory Shank. (1991). "Issue Overview." Social Justice Vol. 18, Nos. 1-2 (1991): xv-xxiv. Copyright © 1991 by Social Justice, ISSN 1043-1578. Social Justice, P.O. Box 40601, San Francisco, CA 94140.