3—
The Legislative Framework of Separatism
In culturally plural societies, especially those dominated by minorities, the maintenance of that domination, and hence of privilege, is inextricably associated with the designation of distinction. Where distinction is easily perceived, as in the case of skin color, barriers to mobility can readily be erected and, if necessary, enshrined in law. In societies with legalistic modes of thought and action the resort to law helps to legitimize the methods employed to maintain the privileges of the dominant group, whatever the observable basis of that group's hegemony.
In the Republic of South Africa observable differences have provided the basis of discrimination, but the bases and precise height of the barriers have long been the subject of intense debate within the dominant group. There has always been tension between those favoring political options presupposing transtribal, or nontribal, affiliation, and those denying any undifferentiated African participation in national life and governance. The integrationist or inclusionist approach, with its many shades of sentiment and varying embodiments in law, was at the heart of nineteenth-century Cape liberalism and Natal segregationism with their assumptions that Africans were to be a part, if a subservient part, of an overall system.
If Africans suffered at the hands of South African legislators, they were at least included in the national political arena. Even when Cape liberals allocated rights and responsibilities with regard to criteria that discriminated against the majority of Africans, they also reserved land for individual African groups, at the same time preserving the territorial integrity of the total society. Furthermore, they were prepared to say that in the fullness of time the processes of development would give a larger and larger proportion of the population full citizenship. It is, therefore, hardly surprising that politically conscious Africans adopted inclusionist positions, even given the limited terms of Cape liberalism. For them the institutionalization of ethnic difference—an exclusionist approach—was a device to ensure their powerlessness.
The ultimate achievement of equality was always anathema to a majority of the white South African population. The exclusionists were never prepared
to agree that the achievement of equality in a common society was either possible or desirable. Still adhering to notions of territorial integrity, this group saw the preservation of its power and the maintenance of its identity in the erection of impermeable barriers. Thus the preservation of racial purity and the extention of discrimination in certain key areas was essential.
Until 1948 the refining of the definitions of racial and ethnic differences was unimportant. As in so many plural societies, the "other" was perceived as an undifferentiated mass. In South Africa, whites could therefore oppose simply Africans — blacks or Bantu (and later "nonwhites"). Color, not language or culture, provided sufficient distinction. The purpose of reserving land in the early twentieth century was to secure an overall division between whites and Africans, not to divide whites and particular segments of the African mass. Only later, with the victory of the National Party in 1948, was South Africa governed by a group committed to discouraging ideas of an African identity and interest, and the concomitant possibility of solidarity. Africans were to be allocated into and confined in their aspirations to "natural," historical categories. Each of the Southeastern Bantu-speaking peoples (politically separated as a result of the Zulu Mfecane and British and Afrikaner conquests as much as a result of underlying cultural or linguistic disaggregation) was deemed a nation or a nation in embryo. The premises of the South African political system, as interpreted by the Tomlinson Commission of 1955, then came to reside in the twin premises that (a) "the European population . . . has developed into an autonomous and complete national organism, and has furthermore preserved its character as a biological [racial] entity. There are not the slightest grounds for believing that the European population . . . would be willing to sacrifice its character as a national entity and as a European racial group," and (b) that "the Bantu peoples . . . do not constitute a homogeneous people, but form separate national units on the basis of language and culture."[1] Each unit was thus supposed to be an organism that, like the Afrikaner volk, would gain maturity through evolutionary growth.
These definitions are arbitrary. "National entity" and "racial group" are ambiguous terms. Whites may today be a racial group but they are not yet a "complete organism." Whites are permitted to enjoy multicultural nationalism, blacks are not. Moreover, despite the reference to "language and culture," not all of the homelands are linguistically unique (e.g., the Pedi [Sotho] and the North Ndebele [Nguni] populate one homeland) and the Xhosa inhabit two (the Transkei and the Ciskei). Further, elsewhere in the world nations have in many senses been self-defining, but in South Africa
[1] Summary of the Report, 103; the Bantu Self-Government Bill of 1959, quoted by Gwendolen Carter, Thomas Karis, and Newell M. Stultz in South Africa's Transkei: The Politics of Domestic Colonialism (Evanston, 1967), 53.
the state, not individuals or groups, decides. The imperial power, in this case South Africa, has imposed both a territorial and a cultural parameter for each of the new proto-nations. The homelands may therefore be considered nations of convenience (the convenience of a dominant power), and many of their leaders, and numbers of erstwhile citizens, so consider them.
Because the present government of the Republic is committed to deny integration to the African majority, the homelands must be kept distant from South Africa politically, if they cannot be removed geographically. Insofar as possible, they must also be separated from one another until independence. The present elaboration of separate development, with the granting of self-government to nominally homogeneous homelands, and the commitment to grant them independence, may thus be seen as the appropriate culmination of the exclusionist strand of South African political thought.
Even within the integrationist tradition there were deviations that foreshadowed the later articulation of full-scale separate development. Reservation of land provided the territorial base without which the policy would have been a nullity, but it was the elaboration of new governmental arrangements in the Transkei at the end of the nineteenth century that linked new institutions based on British, not African, models with segregated landholding. These institutions were the precursors to a later separation based upon ethnicity and race. In 1894, with the passage of the Glen Grey Act by the government of the Cape Colony, Africans were permitted to enjoy individual land tenure on the same terms as whites in much of the Ciskei and the Transkei. This was intended to emancipate Africans within the Cape Colony and ensure a transition from traditional "unenlightened" patterns of usufruct to "progressive individualism." Accompanying it was the establishment of local councils, first in four and then in all of the twenty-six magisterial districts of the Transkei. These six-man, partially elected and partially nominated councils met bimonthly under the chairmanship of a white magistrate to discuss and advise upon local matters, particularly the allocation of local tax revenues for public works, schools, hospitals, and scholarships. From 1895 the system was progressively extended to the Transkei as a whole and, in 1931, all of the district councils were federated to form the United Transkeian Territories General Council, or Bunga. Meant from its inception to confer some of the benefits of liberalism on Africans and to foreshadow the gradual spread of home rule to other African sections of South Africa, the Bunga, and the Ciskei General Council set up in 1934, remained until 1955 virtually the only working devolutions of authority (no matter how circumscribed) within the South African system.
Presided over by the chief magistrate of the Transkei, the Bunga was composed of the twenty-six district magistrates, three of the six councillors
of each district, and three paramount chiefs — 108 in all. The Bunga met annually, published its debates, and from the 1930s discussed proposed parliamentary actions affecting Africans in addition to the disposition of £200,000 of tax revenues. Like the African Representative Councils in Northern Rhodesia and Nyasaland, it discussed, advised, and prepared resolutions. In the Transkei case, however, these resolutions were reviewed by the magistrates before being forwarded to the central government. Furthermore, Parliament was not bound in any way to act on them. So the Bunga was a "talking-shop," a useful arena for the ventilation of concerns and grievances, but a powerless body in the broader context of Union politics. Effectively, as members of the Bunga well knew, power lay with the minister of native affairs, who appointed the magistrates and native commissioners in the reserves and approved or named chiefs or headmen. Nevertheless, the African members of the Bunga were not acquiescent: they opposed segregation vociferously and continually, asked for justice in preference to social equality, fought against the loss of voting rights in 1936, sought the extension of the existing franchise to include African women, and often mocked the various land divisions and settlements imposed on Africans by the central government. "What sort of man would he be who came to buy an ox and gave you in payment a horse that was already yours?" a councillor asked in 1936.[2]
In addition to the Ciskei and Transkei councils, in 1936 a Natives Representative Council was set up to represent Africans throughout South Africa. In part this was a concession to satisfy Africans that the new settlement gave them a recognized place in the political system and did not merely rob Africans in general of the right to buy land or Cape Africans in particular of their common roll rights. Chaired by the secretary for native affairs, an administrator, not a politician, the council consisted of six white chief native commissioners and twelve elected and four nominated Africans. The African members used it as a sounding board, but with little practical result, for all of the major African grievances: land, segregation, urban conditions, the state of the reserves, and the very powerlessness of the council itself. It did, however, serve as a forum for African opinion and as a place where representatives of separated and voteless people could voice their grievances openly. It was the first and last official body that recognized that Africans had interests in common. However it failed hopelessly to satisfy its African members. In 1946 the council adjourned sine die, and in 1947 it rejected new proposals by the Smuts government to make limited changes in the
[2] Quoted in Carter, et al., South Africa's Transkei, 98. There is another summary in Monica Wilson, "The Growth of Peasant Communities," in Monica Wilson and Leonard Thompson (eds.), The Oxford History of South Africa (New York, 1971), II, 87–89.
powers of the council because such proposals were based upon "the principle of permanent separatism."[3]
The new government in 1948 moved rapidly to enact a drastic policy of political segregation. The first change attempted was the elimination of coloureds from the common roll, touching off a six-year constitutional crisis. There followed the first systematic attempt to base African political institutions on ethnic division. In order to "have a basis on which the Native will henceforth be able to give expression to his own inner self to develop his family life and his national life," Parliament in 1951 passed the Bantu Authorities Act. It set up an elaborate new system to give the African an opportunity to "be a recipient of those human rights and privileges for which we are all yearning in this life." Nationalist legislators claimed that they were doing their "utmost to save what can still be saved of the tribal life of the Bantu which embodies the whole basis of his social, political and economic structure."[4] The Natives Representative Council was abolished.
More specifically, the act established a hierarchy of Bantu authorities, tribal, regional, and territorial, with limited legislative, executive, and judicial powers, each guided and ultimately controlled by whites. Members of tribal authorities were to be appointed by local chiefs (all of whom were already salaried government officials) and the local Bantu commissioners (who retained the power of veto). Regional authorities covered two or more tribal authorities and consisted of the members of those subordinate authorities. They could run schools, build and maintain public works and hospitals, improve farming, agricultural, and silvicultural methods, make bylaws, levy taxes, and impose fines. Territorial authorities, defined in more detail by the Promotion of Bantu Self-Government Act of 1959, supervised the regional authorities, taking over their powers and their methods of obtaining revenue, but always to the extent permitted by and with the explicit approval of the governor-general (later, the state president), as advised by the cabinet of the Republic. The authorities were to meet annually.
The Bantu Authorities Act had little immediate impact on local African governance. Chiefs were suspicious, and educated, politicized Africans were unequivocally hostile to it. For them this was retrogressive, patronizing legislation. At first few chiefs and traditional councillors could be persuaded to take advantage of the rearrangements envisaged by the bill. In 1953 the first three tribal authorities were established in the Transvaal, and a few other groups agreed, whether from self-interest or under pressure, in Cape Province and Natal. Not until 1955, however, when the Bunga voted to
[3] Colin M. Tatz, Shadow and Substance in South Africa (Pietermaritzburg, 1962), 118.
[4] J. A. S. Nel and W. A. Maree, members of Parliament, quoted in Carter, Transkei, 49.
accept the scheme in principle, did the government succeed in obtaining any significant African support. By that time the Tomlinson Commission had issued its massive report with a call for an acceleration of separate development; representatives of the Bunga may have decided that the proposed new authorities could give Africans the kind of power and arena of control capable of being enlarged over the years. Certainly they had no desire to give up their persistent agitation for a return to the common roll and direct representation in Parliament, but they may have been persuaded that the Bunga had outlived its usefulness.
In 1957 the Transkeian Territorial Authority, composed of chiefs and nominated and elected councillors, replaced the Bunga and became the first day-to-day African government within the Republic. It ran a number of business enterprises and plantations, carried out road and bridge construction, and tried to persuade central government departments and officials to alleviate hardships. Its deliberations were taken seriously; they were not "merely a charade."[5] Even so, its responsibilities and powers were ill-defined and limited and no other African groups followed the lead of the Transkei. If anything, African antagonism to separate development was becoming stronger and more outspoken. There was a successful bus boycott on the Rand in 1957, demonstrations against the treason trial in 1958, riots against the issuance of passes to women, disturbances in the northern Transvaal and the Transkei, and a widespread atmosphere of political ferment that infected at least some of the reserves as much as the cities.
The accession of Dr. Hendrik Verwoerd, previously minister of native affairs, to the prime minister's office in 1958 hastened the translation of ideology into enactment. Given the unrest and anxiety within South Africa, the intensifying hostility of the international arena, the unresolved legacy of the Tomlinson Report, and his own ideological background, it is understandable that Verwoerd should have tried to satisfy a number of political needs with new and comprehensive legislation affecting Africans. Only by giving separatism an expandable framework could Verwoerd and other Afrikaner nationalists have claimed later that South Africa was composed of many nations, white, brown, and black, and that the government was actively promoting the development of all people toward "separate freedom." By dividing Africans into cultural groups, they could assert that the white nation was larger than any one of the "Bantu" nations and should no longer be thought of as a ruling minority. (Today, both Xhosa and Zulu outnumber whites.) The logic of separate development also demanded the elaboration of new institutions of self-government, especially if that elaboration were accompanied by the exclusion of Africans from limited political participation
[5] Christopher Hill, Bantustans: The Fragmentation of South Africa (London, 1964), 57.
by the repeal of part of the Representation of Natives Act of 1936 and by the exclusion of Africans from open universities.
The Promotion of Bantu Self-Government Act of 1959, however vague and capable of several interpretations, was an elaboration of the Bantu Authorities Act and became the legal cornerstone of subsequent homeland developments. The preamble asserted that Africans formed diverse national units distinguishable by language and culture and could not be considered in any sense homogeneous; that provision should be made for the gradual extension of self-government to the national units; that the units should control land; and that the units should possess a number of executive and legislative prerogatives.
The act accordingly designated eight national units on linguistic and cultural rather than territorial grounds (the Ciskei and Transkei were not differentiated at this stage), with commissioners-general as the representatives of the central government designated to "furnish guidance and advice" and "enlighten the population." It permitted the governor-general (the president since 1961), who appointed the commissioners-general, to transfer legislative powers, as and when appropriate, to the various governmental units. The units, moreover, could govern with powers given to them, and could receive land held in trust under the 1936 legislation. But the act did not define self-government, indicate timetables, enlarge the elective fraction of the envisaged unitary governments, or diminish the central government's continued powers to rule by decree. Respecting certain matters the national executive would henceforth be required to consult the homeland authorities, but only the most far-seeing or totally cynical homeland leader could have derived much comfort from the act, the bitter debate over it in Parliament, and the package of removals and exclusions with which it was associated.[6] Subsequently, however, the act was to be used for the political advancement of Africans at a time when other avenues were closed.
At the time of the passage of the act only the Transkei had a functioning territorial authority. Its subordinate status within the Republic was evident, as was its inability adequately to represent the interests of Xhosa living outside the Transkei. But the force of events within and without the Transkei, and an awareness on the part of some Transkeian leaders of alternative modes of gaining advantages for Africans, precipitated structural changes more rapidly than might have been anticipated or desired by the central government. The Sharpeville massacre in early 1960 compelled white South Africans to become acutely aware of the strength of international antagonism to apartheid. Verwoerd publicly acknowledged its strength and, in 1961 in
[6] For the legislation and its relationship to Verwoerd's ideology, see L. E. Neame, The History of Apartheid: The Story of Colour in South Africa (London, 1962), 158–161.
order to forestall an almost certain expulsion, retreated further into isolation by removing South Africa from the Commonwealth. South Africa was in the throes of an emergency throughout most of 1960; the African National and Pan-Africanist Congresses were both banned and their leaders detained, banned, or driven underground. In the Transkei, specifically, there were violent protests of local and national grievances throughout 1960 and the first part of 1961. The central government made mass arrests, especially in Pondoland, where legally a state of emergency still exists. Two months later, in April 1961, Britain voted for the first time with the other major powers in the United Nations to condemn apartheid and to work for its moderation. On 10 April 1961 Verwoerd said that "in the light of the pressure being exerted on South Africa," the government would encourage the advancement of self-governing African homelands and would contemplate the provision of independence.
Chief Kaiser Matanzima in 1960 had asked the central government to declare the Transkei a locally controlled African state. On 21 April 1961, apparently to the surprise of officials, a member of the Territorial Authority moved during the regular session that the central administration transform the Transkei into "a self-governing state under control of the Bantu people."[7] Matanzima and his supporters had made a political judgment — that more was to be achieved by supporting separate development than by opposing it; that Africans could not hope to regain representation of any significance in the national arena; and that a large measure of local control might prove an acceptable, if temporary, substitute.
More than a year after making the first overtures, and after intensive political consultations in Pretoria, a committee of whites and blacks, with a majority of officials, slowly drafted a constitution. Despite strenuous and widespread popular opposition in the Transkei, the Territorial Authority in 1962, and the Republican Parliament in 1963, approved the Transkei Constitution Act. It called the Transkei a self-governing territory within the Republic, described its boundaries, and specifically excluded white-controlled enclaves. There were provisions for a flag and a national anthem. Citizenship was restricted to Africans born within the homeland, residents there for five years, persons whose mother tongue was a version of Cape Nguni (Xhosa) and who owed no allegiance to another homeland, and other outsiders whose genealogies led back to other African linguistic groups of the Transkei.
The constitution established a six-man cabinet presided over by a chief minister and a legislative assembly of four paramount chiefs, sixty other chiefs (all chiefs were governmental appointees), and forty-five representatives elected on a basis of adult suffrage. The assembly received a mandate to legislate for education, direct taxation, any and all purely local matters,
[7] See Carter, Transkei, 26, 113; Survey of Race Relations, 1961, 97.
agriculture, local public works, local police and security, courts, welfare, liquor, district councils, and minor issues. The original constitution also reserved a number of powers to the central government: defense, national police and security, harbors, railways, postal and telegraph services, national roads, currency and banking, customs and excise, foreign affairs, and amending the constitution itself. And, as with all subsequent homeland constitutions, bills passed by the assembly had to receive the assent of the state president before becoming law.[8]
During the 1960s South Africa suppressed black- and white-led challenges to the authority of the state, removed more and more larger society privileges from Africans, coloureds, and Asians, and increased the efficiency of its internal security system. For the first five years the state faced various groups desiring major policy changes by constitutional and revolutionary means, although conflict never culminated in prolonged breakdowns of order on a large scale. Even so, the government was frightened. It responded by legislating further limitations on the rule of law, making mass arrests, persistently prosecuting opponents, and detaining leaders and followers without trial for long, renewable periods.
By the middle of the decade the government had demonstrated a willingness and capacity to preserve order at any cost. It had simultaneously manifested a determination to pursue its avowed goals of political and social segregation. The Prohibition of Political Interference Act of 1966 regulated both the political process and access to that process. It prohibited multiracial politics and prescribed the very qualifications of party membership. If many believed that the Sharpeville massacre foreshadowed the collapse of the South African regime, by the mid-1960s it had become even more evident that National Party control of South Africa could be ended only in a distant future, and with great difficulty. In retrospect we can see that confident predictions about the collapse of white rule in South Africa were based upon aspiration rather than any accurate assessment of local conditions.
Equally it became apparent that African political advancement, if any, would occur in the foreseeable future only within the context of the development of the homelands. Matanzima, then widely believed to be a collaborator, nevertheless showed that the logic of separate development could be exploited to African advantage. Making use of the powers conferred by the act, he introduced a measure to provide for the instruction of schoolchildren in English rather than Afrikaans or Xhosa from Standard III. Although contrary to official policy — "mother tongue instruction" is sacred to Afrikaner nationalists — the Transkei made its decision prevail.[9] In 1968, too, the
[8] A detailed summary of the act is in Survey of Race Relations, 1963, 83–87.
[9] Muriel Horrell, Bantu Education to 1968 (Johannesburg, 1968), 59; Carter, Transkei, 161 – 162.
Transkeian Legislative Assembly, perhaps prodded by South Africa, asked the Republic to prepare the Transkei for independence in the shortest possible time.[10]
Simultaneously the central government attempted to accelerate the implementation of existing legislation regarding the homelands. It also began to prepare new bills in order to enhance the credibility of the homelands and provide for their political growth. The issue of independence, raised by Verwoerd in 1959, began to be discussed more frequently and explicitly. "I established eight [homeland] governments," M. C. Botha, the minister of Bantu administration and development, said in 1970, "not in order that they might sit there and become rigid and bleed themselves to death as governments, but in fact for the purpose of promoting the process of evolutionary political development on the road to their separate independent destinations." During the next year Prime Minister B. Johannes Vorster confirmed the intention of giving complete independence to the homelands, if only at the end of a long road.[11]
Africans, especially urban Africans, at first resisted the creation of homelands as vigorously as they protested against apartheid and separate development. Toward the end of the 1960s, however, leaders in the various potential homelands began to respond to the blandishments and pressures of white officials; some may also have seen potential rewards for all blacks in Matanzima's maneuvering. Whichever, it was more from necessity than from enthusiasm that the leaders of both the future homelands of Bophuthatswana and KwaZulu agreed to follow an accelerated version of the Transkeian constitutional evolution. "Homeland leaders who have accepted separate development," said Chief Gatsha Buthelezi in 1971, "have done so because it is the only way in which Blacks in South Africa can express themselves politically."[12]
Bophuthatswana had accepted tribal and regional authorities (the bottom two steps on the ladder erected in 1951) by the mid-1950s. In 1961, the Tswana Territorial Authority came into being under Chief Tidimane Pilane. Its purview was six large and many small, scattered reserves in the northern Cape and the western Transvaal occupied mostly by Tswana, but also by Xhosa and Ndebele. There were eight (later ten) regional and numerous tribal authorities. Only the Kwena of Mogopa rejected the entire system. The Territorial Authority established a school for sons of chiefs, a teachers'
[10] Muriel Horrell, The African Reserves of South Africa (Johannesburg, 1969), 3.
[11] Botha, in House of Assembly Debates (7 Sept. 1970), col. 3505; Vorster, cited in Survey of Race Relations, 1971, 29. For a further discussion of South African views on the independence question, see Merle Lipton, "Independent Bantustans?" International Affairs, XLVIII (1972), 11, 14.
[12] Quoted in Jean Le May, "Black Political Parties Return to S.A.," The Star, 12 Aug. 1972.
training college, an industrial school, and an agricultural training center. It sponsored agricultural improvement and stock breeding schemes; encouraged the formation of cooperatives, especially for dairy produce; built feeder roads and erected boundary fences; drilled bore holes; ran a bus service and profit-making liquor stores, and so on. But the Tswana did not receive expanded powers until 1968, when the Department of Bantu Administration and Development was actively persuading other "nations" to form territorial authorities. The new regulations provided for delegation of authority to an executive council, but the Territorial Authority did not become self-governing.
The Zulu, led by Chief Gatsha Buthelezi, of the family traditionally responsible for providing Zulu chief councillors, remained throughout the 1960s essentially antagonistic to the government's pattern of institutional devolution. The first Zulu regional authorities were gazetted in 1959 but resistance to their establishment persisted. As early as 1963 Ingonyama ("Paramount Chief") Cyprian ka Solomon Bhekezulu, who was in favor of the authority pattern, summoned a large meeting of subordinate chiefs to Nongoma in order to promote its acceptance, but Buthelezi asserted that such a momentous decision could only be made after Zulu in both the rural and urban areas were consulted, and other chiefs supported this tactical maneuver.[13]
As of late 1965, in Natal and Zululand 102 "tribes" had requested authorities and 137 either were opposed or indifferent. There were twelve regional authorities, too. Both regional and tribal authorities controlled but a small proportion of the total African area of Natal. In that year, in Buthelezi's own district, officials of the Department of Bantu Administration and Development were reportedly preparing to impose the authority system without local approval. In response, Buthelezi, already the master of ironic joust, said that he was relieved to learn that indigenous acceptance was unnecessary. If the law empowered the government to proclaim tribal authorities, the Zulu should not be asked either to approve or disapprove. Even though he did not think that the Bantu authority program solved South Africa's fundamental problems, he obeyed the law and would cooperate without approving. The majority of the Zulu would remain on record as having consistently opposed authorities as long as they could do so.[14] Late that year, the government gazetted a tribal authority in Buthelezi's Mahlabatini district.
[13] See Gatsha Buthelezi, "Independence for the Zulus," in Nic J. Rhoodie (ed.), South African Dialogue: Contrasts in South African Thinking on Basic Race Issues (Johannesburg, 1971), 204.
[14] Survey of Race Relations, 1965, 133–134.
Five years later, Buthelezi was no less intransigent. But he agreed to run a territorial authority after he and other Zulu had been subjected to intense official pressure. He realized that only by making the best of the fait accompli could he continue to wield influence and power within the Zulu community and prevent the paramount chief, and his supporters, from organizing the authority on conservative lines in cooperation with the white bureaucracy. The Zululand Territorial Authority thus began to function in 1970, with Buthelezi being unanimously elected by 200 members as its chief executive officer. He immediately called on the central government to demonstrate its sincerity and give the Zulu people a homeland of realistic size and resources: "The plain truth of the matter is," he said later, "that if the South African Government does not deliver the goods on the basis of its own scheme, the Blacks of this country will become even more disillusioned than at present." Furthermore, he said, "I am not prepared to say that separate development is the only hope, but it may be a contribution to the development of the situation. It may be a contribution to the unravelling of the problem, insofar as, if we attain full independence, our hand will be strengthened. Gone will be the days then, one hopes, when people will think of us simply as 'kaffirs.'"[15]
By the last years of the 1960s the government had gone as far as it could with territorial authorities under existing legislation. Thus far the creation of authorities had proved a piecemeal, comparatively uncoordinated, and still tentative process. Only partially could it satisfy what Botha termed South Africa's legal, ethical, and moral obligations constitutionally to advance the "Bantu nations" of the Republic.[16] Now that the government had begun moving all the national units it had so defined toward the territorial authority goal, it faced the possibility of having to legislate separately (as in the case of the Transkei) for an additional eight homelands. In order to avoid this problem, and to give the government greater freedom to devise and proclaim new arrangements, Parliament passed the Bantu Homelands Citizenship Act of 1970 and the Bantu Homelands Constitution Act of 1971. Together these comprehensive bills established a framework for all subsequent homeland arrangements and provided a visible mechanism for harmonizing the older devolutions of authority with current practices and anticipated developments in the newer homelands.
The Bantu Homelands Citizenship Act embodied the government's insistence that all Africans, wherever in the Republic they resided or may have resided over time, had "national" homes, and that those homes were in the
[15] Gatsha Buthelezi, "End this Master-Servant Relationship," Rand Daily Mail, 2 July 1971.
[16] M. C. Botha, in House of Assembly Debates (7 Sept. 1970), col. 3495.
separate proto-states. The act gave the minister of Bantu administration and development power to provide for the issue of certificates of citizenship so that every African would become a citizen of a territorial authority, however remote in time or place his ties to that particular territory might be. According to the provisions of the act, every African born in a particular area, domiciled there, every person using the language of that area or an "associated linguistic group," every person related to a member of such a group, anyone who has identified himself with that population, or anyone associated with such a population by virtue of his cultural or racial background would and must be entitled to the appropriate citizenship. Since an elusive definition of racial identity is a fundamental prerequisite of citizenship, whites, although they might live in a homeland and speak a local language fluently, and perhaps have been born there, could not apply for homeland citizenship. Africans were expected but not required to apply for citizenship.
Allocations and designations of citizenship are made under the act in the first instance by a territorial authority or homeland government, and on appeal, by the minister of Bantu administration and development. The act makes possible the ultimate distribution of citizenship and accompanying identity cards to all Africans; in the future, citizenship is intended to determine and be the basis of participation in political life for all blacks in South Africa and also for the holding of property in the urban areas of the Republic. There is a provision for the granting of homeland citizenship to Africans from other homelands, i.e., Xhosa can acquire citizenship in KwaZulu if the government of KwaZulu agrees. Under the broadly drawn criteria of the act, it will be impossible for an African to say "I know no homeland. We have been in the city so long, there is no basis for giving me a homeland citizenship."
The Bantu Homelands Constitution Act permits the president of the Republic, when advised by the minister of Bantu administration and development, to establish tribal, regional, and territorial authorities, and to grant differing degrees of self-government to indigenous authorities (the word "state" is avoided) without constant recourse to Parliament. The thrust of the act is clear: "It is the firm and irrevocable intention of the government to lead each nation to self-government and independence."[17] As with the Bantu Authorities Act of 1951, the Bantu Homelands Constitution Act distinguishes between the various levels of authority, the tribal bodies on the one hand and the more important regional and territorial instruments on the other. Tribal authorities are to remain closely tied to traditional forms
[17] Republic of South Africa, Department of Bantu Administration and Development, Explanatory Memorandum on the Homelands Constitution Act (Pretoria, 1971), 1.
(as officially interpreted) of governance, but higher bodies need have no traditional component except insofar as they provide for the participation of chiefs and headmen, adopt the local vernacular as a legislative and administrative tongue, and make an indigenous song the "national" anthem. In Bophuthatswana the Legislative Assembly concludes with the singing of an indigenous anthem.[18] There, too, the mace is crowned by the figure of a leopard and a ring of ox-heads, but it is still a mace, and its function is the same as the mace of the House of Assembly in Cape Town or the House of Commons. There are also national flags with indigenous components, but there is no attempt to base the new polities upon traditional institutions.
The Bantu Homelands Constitution Act decrees no chronological order for the granting of self-government and the establishment of legislative assemblies. Usually, however, assemblies have preceded self-government, the terms of which have been the subject of negotiation between the Republic and an existing territorial authority. Legislative assemblies have been proclaimed statutorily only after the minister of Bantu administration and development has consulted the existing territorial authority. The act empowers assemblies to discuss and pass bills on a list of subjects (the list being in theory easily altered by the minister of Bantu administration and development and the president of the Republic without further scrutiny by Parliament). Homeland legislation must be approved by the state president, who may also refer particular bills back to the original assembly. Furthermore, there are specific exclusions, corresponding to those in the Transkei Constitution Act of 1963. Assemblies are not competent to pass bills pertaining to matters of general security. Military and wider policy powers are beyond their scope, as is the regulation of the manufacture and sale of arms; the entry into each homeland of "persons other than citizens"; foreign affairs; postal service, telephones, and communications; currency and the banking industry; and customs and excise. Homelands may not amend or repeal the Bantu Homelands Constitution Act. Nor are they able to amend their own constitutions without the consent of the president of the Republic..
With any grant of self-government under the act, a territorial authority's executive council automatically becomes a cabinet, councillors become ministers and the chief councillor a chief minister, and directors of departments (so far all white) become secretaries. (In 1974, a black secretary was appointed in the Transkei.) The executive also becomes responsible to the local parliament, being constituted from among the members of the relevant
[18] The hymn is Morena Boloka, generally recognized as something akin to a Southern Sotho national anthem, which emphasizes Sotho identity, and, unlike Nkosi Sikelela, has no all-African referent. A rough translation is as follows: "Chief [also Lord, God] take care of our people [nation]/Put an end to wars and tribulations [affliction, oppression]/Look after it, our nation." Courtesy, Philip Mayer.
legislative assembly. The executive branch retains the customary British-style prerogative over financial matters, being responsible for proposing appropriations to the legislature. Even so, because of the subordinate nature of the homeland system within the larger Republic, budgetary autonomy is limited to control over a revenue fund composed of taxes paid by its resident citizens, taxes on the profits of companies "managed and controlled in the area concerned and in which Bantu have a controlling interest," an annual grant from the central government equal to the cost of functions transferred to the homelands (minus revenues raised from individuals and the salaries of officials lent to the homelands), and such sums as parliament may grant. However, under the enabling act a homeland does not receive all of the taxes paid by its citizens, especially excluding those taxes, such as the sales tax, paid during their sometimes prolonged residence elsewhere in the Republic.[19]
One of the consistent themes in the policy of separate development is the preservation and strengthening of the role of traditional rule in African societies. This policy has been followed because Afrikaner nationalists are themselves conservative and intensely aware of the necessity of preserving their own cultural identity. But presumably the policy is also followed because traditional rulers are assumed to be conservative, especially in wanting, as do most whites, to preserve the existing distribution of power. Thus the homeland constitutions almost invariably include a majority of chiefs. The Bantu Homelands Constitution Act permits the powers of chiefs and headmen to be "varied and withdrawn" only by a "competent authority." In the case of tribal and regional authorities, the indigenous legislative assemblies are deemed "competent." Assemblies, therefore, have the power to withhold recognition from individuals as chiefs and headmen and as members of tribal authorities, but the proportion of members elected is embodied in the constitution, which can only be amended with the consent of the president of the Republic. The act entrenches the powers of chiefs in the Legislative Assembly by making the proportion of nominated and elected members of the assembly subject to outside authority. This restriction was made abundantly clear in 1975 when the government refused to accept an amendment to the constitution of Lebowa that would have created a House of Chiefs, separate from a properly elected legislature.[20]
The act continues the application of the South African judicial system to the territories. Yet, the Republic may transfer courts to territorial authorities on an ad hoc basis, and in the future each territory may set up its own high court to replace the local or provincial division of the Supreme Court of South Africa under which lower courts now function in the homelands. (The Transkei has already set up a High Court headed by a white judge from
[19] For amendments to these provisions, see 143–144.
[20] Survey of Race Relations, 1975, 138.
the Eastern Districts division of the Supreme Court.) At the time of transfer, noncitizens (presumably whites) will be exempt from homeland jurisdiction. All citizens of a particular homeland, wherever they may reside, will in a complementary fashion be subject to the courts of their "national" home, a rather complex system of extraterritorial jurisdiction not yet functioning. Even at the time of transfer, however, appellate jurisdiction will remain with the appropriate level of the South African jural system. Thus, the act envisages no major changes in the administration of law. After self-government, homelands will be permitted to amend acts of Parliament so long as the amendments affect their own citizens only; hence, within the framework of separate development there is little to prevent the government permitting, or even encouraging, Africanization of the law.
The Bantu Homelands Constitution Act cannot alone bring a territory to the brink of independence. There are prohibitions in the bill that inhibit a territory's relations with the outside world and define its populace as citizens of South Africa when traveling abroad. Even within South Africa (but outside the homelands), residents of homelands are deemed still subject to South African law and its consequent selective disabilities. Citizens of the homelands, whether or not called "temporary residents," do not have legal rights in the Republic comparable to those of, say, Germans or Italians working temporarily in Britain or resident aliens in the United States. Such migrants, whether long- or short-term, may acquire property and, in certain circumstances, citizenship. In South Africa such possibilities are severely restricted.
Yet, the act contains a phenomenon new to South Africa. It provides a pattern for the constitutional evolution of the homelands and the possible accumulation of power, albeit circumscribed power, by Africans. Moreover, the very existence of the act makes bureaucrats anxious to move all the homelands from stage one (all appointed) to stage two (partially elected legislatures). The act has thus hastened, and legitimized in the mind of Afrikaner nationalists, the process of devolving responsibility to Africans. The fact, too, that the rights of the leaders of the homelands are enshrined in general omnibus legislation also gives an important immunity—of substantial protective value—to the more and more outspoken chief councillors and chief ministers of the homelands.
Under the new legal instruments, Bophuthatswana achieved stage one in 1971, when the thirteen Tswana regional authorities (reduced to twelve) were made subordinate to a reorganized Tswana Legislative Assembly. In 1972, the Bophuthatswana Constitution Proclamation (R 130) declared Bophuthatswana, the "place where the Tswana people abide," self-governing, and provided a method for electing the assembly. This was stage two. The assembly consists of twenty-four elected members and forty-eight members
designated by the regional and tribal authorities (primarily chiefs and headmen). The elected legislators represent twelve constituencies, each electing two members, and are chosen on the basis of adult suffrage. The chief minister is elected directly by the assembly. He heads a cabinet of seven ministers appointed by him and approved by the assembly.
Zululand (since 1972 known as KwaZulu), although the most populous of the homelands, was loath to cooperate with the wishes of the Department of Bantu Administration and Development. Yet, during 1971 the central government repeatedly made known its desire that the Zulu should move toward a Transkei-like self-government, perhaps under the leadership of Goodwill Zwelithini, the young Ingonyama and estranged nephew of Chief Buthelezi, who was to be installed later in the year. The Zulu Executive Council and the full Territorial Authority also both asked during the year for a legislative assembly, and finally Chief Buthelezi and the government agreed to discuss a constitution, for the drafting of which Buthelezi relied upon the advice of sympathetic South Africans as well as officials of the Department of Bantu Administration and Development.
In 1972, as KwaZulu ("at the place of the Zulu"), the Territorial Authority agreed upon and received a constitution for stage one (Proclamation R 69) of self-government. It created a nominated and indirectly elected assembly of chiefs and commoners. Each of the twenty-two Zulu regional authorities were to be represented by three chiefs (sixty-six in all). The three chiefs of a tribal or a community authority that was a regional authority also received places. Eventually fifty-five more members will be elected on the basis of adult suffrage, with the number of elected representatives per regional constituency dependent upon the population of each. The urban Zulu are not represented as such, although they can and will vote as from their presumed rural "homes."
Buthelezi managed to gain some concessions during the drafting of this constitution. He won the right to select the members of the Executive Council rather than to have them elected by the assembly, though he is required to present his council to the assembly for approval. He persuaded the members of the authority to swear allegiance to the state president and the Ingonyama only, but to refuse to offer fealty to the Republic's government. That government, after all, was responsible for the passage of the legal paraphernalia of apartheid. Buthelezi told the authority that he was "conscience-bound to disagree with many of the laws made by the Government."[21] The authority also agreed that the Ingonyama should participate only in the ceremonial proceedings of the new assembly, and—unlike the role of paramount chiefs in the Transkei—should have no executive position. In nearly all other respects, bar the 166 rules of legislative procedure but including the scope
[21] The Star, 12 Jan. 1972.
of the assembly's power, the perquisites of office, and the like, the relevant proclamations put KwaZulu on a footing effectively similar to, if not congruent with, the Transkei and Bophuthatswana. Still, in terms of the Bantu Homelands Constitution Act, KwaZulu, because it has not moved to stage two and has therefore not become completely self-governing, suffers some disability.
The delay in achieving self-government in KwaZulu has been due in part to a political struggle between Buthelezi and the central government. Perhaps because he felt that the shift to self-government involved no major concession of power and resources, Buthelezi used the issue to make a point against the pass laws by refusing to allow voters to register on the basis of the Republic's hated reference books. Instead he has demanded the use of citizenship certificates under the new act, but that maneuver has made political change subject to both the speed with which the certificates are issued by the Department of the Interior, which controls the expensive machinery used in processing applications and manufacturing the identity cards (which include a photograph), and the willingness of Zulu to go to the trouble of getting them. Zulu in white areas, like all Africans there, are understandably nervous about losing rights of residence; Buthelezi has claimed that this anxiety may have inhibited them from applying for citizenship, quite apart from political or economic objections to doing so. Of 2,150,000 people estimated to be qualified for citizenship at the end of 1974, about 600,000 people had applied, and 376,000 certificates had been issued.[22]
It is important to emphasize the limited nature of the changes in the constitutions of the homelands. The legislation of 1970 and 1971 provides no major break with the system established in the Transkei in 1963, the roots of which go back to the Bantu Authorities Act of 1951. What has been achieved constitutionally in recent years is the extension of Transkei-type models to the other former reserves. The distribution of power remains much as before, and, if the Transkeian developments are to continue to constitute precursors of change in other African areas, independence is near at hand. Existing legislation does, however, make possible further delegations of authority to Africans not explicitly excluded by the Bantu Homelands Constitution Act, e.g., more departments could be handed over, as in the case of the Department of Health in the Transkei in 1973, and the Department of Health and Social Welfare in Bophuthatswana in 1975. Furthermore, increases in resources are being made to the homelands by allocating money from the Republic's Consolidated Fund and by changing the basis of taxation. But the inequality of power between the Republic and each of its homelands remains. It is an inequality that will clearly not be removed by the homelands' achievement of independence.
[22] Survey of Race Relations, 1975, 131. For a further discussion, see 55–56.