The Prism


by Kenneth S. Broun

South Africa today is a miracle. There has never been a more significant and successful governmental change in a nation without bloody revolution or massive social upheaval.

Although a gradual softening of the policy of apartheid had begun before 1994, that year marked the true end of the policy of apartheid and the beginning of a non-racial true democracy. In 1994, the elected government of South Africa changed from exclusive white control, dominated by Afrikaans speaking white people, to a multi-racial character, dominated by black people of African origin. An all powerful Parliament was replaced by a Parliament which must govern in accordance with clear constitutional limitations. As in the United States, every act of the government is subject to judicial challenge.

In order to understand the significance of these changes, oneness to be reminded of what the scheme of Grand Apartheid really was. It was no mere Jim Crow, although it had that aspect as well -- known in South Africa as "petty apartheid." Rather, Grand Apartheid was a scheme that depended both on total separation of the races (all races defined under South African law: black, white, Asian, and "coloured" [people of mixed race]) and total subjugation of persons not classified as white. Each race lived in its own areas, had its own schools and its own job reservations. There were attempts, at least partially successful, to deprive blacks of citizenship rights of any kind. They were aliens in their own country.

Classic, fundamental apartheid policy said that none should be educated beyond the needs of a domestic servant, or at best a teacher of domestic servants. No black could hold elected office within South Africa itself; no black could vote in an election. The voting and office holding rights of Asians and "coloureds" were severely limited.

What was especially distinctive in South Africa under apartheid was not only the pervasive evil of the system but the fact that a small minority of residents subjected the vast majority to second, third and fourth class status. Although statistics varied over the years, the white population of the country has hovered at less than 15 per cent of the population.

Thus, the change to a black dominated government in 1994 was remarkable, indeed earth shattering. Predictably, change has also given rise to some serious problems. The successful move into political power by black politicians has not translated into life-style change for the overwhelming majority of black people in the country. The economy is still in control of the white population. Affirmative action programs are in effect, but they have yet to have a major impact on the average black person. Unemployment among the black population is at 45% nationwide and is higher in some parts of the country. Black people were walking, seemingly aimlessly, along the side of the roads under apartheid; they are still walking in the new South Africa. Crime is clearly worse. Whites are the most fearful, because to some extent crime is affecting them strongly for the first time; blacks are by far the most common victims. The crime is economic -- often the poor and unemployed see no other avenue. Predators, black and white, have taken advantage of the situation to seek an easy path to wealth.

Discrimination in education under apartheid has severely limited the number of blacks with backgrounds sufficient to provide leadership in a modern, industrial democracy. Those who have managed to educate themselves are often superb people, intellectually and otherwise. The problem is that there are too few people with the necessary qualifications. It will be many years before the educational system will catch up with the needs.

Somewhat surprisingly, the new one-person/one-vote South Africa has not always produced governmental bodies within the country with allegiance to democratic values. In Kwazulu-Natal, the Inkhata Freedom Party, long an ally of the old South African government, retains local power. Violence, just short of open warfare, between Inkhata and the African National Congress supporters of President Nelson Mandela has claimed hundreds of lives in the province. The large Western Cape province, wherein lies the country's second largest city of Cape Town, is in the control of the Nationalist Party -- the same party that brought the country the policy of Grand Apartheid in 1948. The "Nats" have retained control in the Cape through the votes of the area's large "coloured" or mixed race population, whose decisions were nourished by fears of black African dominance. Racism dies hard.

Despite the problems, the future is not bleak. The country, now operating under an interim constitution, is in the process of drafting a final constitution. A proposed new constitution was finalized just this past May. According to the interim constitution, the Constitutional Court, itself a new institution in the nation, must certify that the final document satisfies certain constitutional principles. On September 6, 1996, the Court refused to certify the document, holding that it fell short in several respects including an inadequate entrenchment of the Bill of Rights, inadequate assurance of separation of powers, an over-concentration of power in the central government and insufficient independence for watchdog agencies such as the office of the Public Protector (the national ombudsman). The Court's action should not be viewed as an indication that democracy is threatened in South Africa, but rather as evidence that the nation is a working constitutional democracy.

There has also been adherence to democratic process in the election system. Reports of irregularities in elections are infrequent. The violence that can erupt in South Africa has not prevented the democratic process from working. Importantly, local government is in the control of the people affected by the decisions. Under apartheid, there was virtually no self- government in the black townships. These same areas are now able to control their own destinies.

The leadership of the African National Congress, the dominant political party, is intelligent, politically astute and democratically aware. Nelson Mandela is a brilliant leader; he has men and women around him of competence and good judgment. They will go through some difficult times, especially when Mandela, with all of his ability and charisma, leaves office. But the leadership of the ANC has the talent and the good sense to keep the country on the right track. Most significantly, most people in South Africa of all races and ethnic groups, want to see the country work. They are ready to accept democracy and have set up a structure to insure that it can be maintained. That's a formula for success.

Kenneth S. Broun, Henry Brandis Professor of Law, University of North Carolina School of Law, has gone to South Africa almost every year since 1986 to conduct trial advocacy training courses for the Black Lawyers of South Africa. He is especially proud of the fact that he is one of very few white members of the Black Lawyers of South Africa.

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