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This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

First Report of the Technical Committee on the Transitional Executive Council 13 May 1993

Introduction - The Need For A Transitional Executive Council

For the reasons that follow, the committee is of the opinion that there is a need for a Transitional Executive Council/Authority (TEC) during the period leading to the first elections:

1.1 In view of the wide acceptance of the need for democratic elections in South Africa, the date of which has provisionally been set for not later than the end of April 1994, it is important that the electoral process be seen as fair, open, free and unbiased;

1.2 A TEC will offer all participants in the Multi-Party Negotiating Process (MPNP) the opportunity of participating in matters relating to the effective and satisfactory management of the first stage of the transition to democracy;

1.3 In view of the multi-party participation in the process, a TEC will provide the required acceptance and acceptability of the process (legitimacy);

1.4 With increased legitimacy and acceptability of the management of the process, stability will be promoted and the levels of violence are likely to diminish;

1.5 This, in turn, will foster a climate conducive to fair and free elections;

1.6 A TEC will have the added advantage of making the process leading to the election more transparent;

1.7 A TEC will promote domestic and international confidence in the constitutional process.

2. THE TEC AND SUB-COUNCILS

Within its terms of reference, and having regard to the decisions of the MPNP, other submissions made documents furnished to it including the report of Working Group 3 of Codesa, the Committee recommends as follows:

2.1 That legislation be drafted to provide for the establishment and functioning of a TEC and sub-councils.

2.2 That the proposed legislation adopts the following scheme:

2.2.1 Establishment and Purposes/Objectives

2.2.2 Composition

2.2 3 Powers

2.2.4 Sub-Councils: Establishment, Composition, Appointments and Powers

2.2.5 Jurisdiction and Disputes

2.2.6 Meetings

2.2.7 Decisions

2.2.8 Finances

2.2.9 Amendment

SYSTEMATIC AND ITEMISED SET OF PROPOSALS TO FACILITATE DISCUSSION IN THE PLANNING COMMITTEE AND NEGOTIATING COUNCIL OF THE MULTI-PARTY NEGOTIATING PROCESS

(This report has been submitted in a format resembling draft legislation)

More specifically,  the Committee recommends the following on the basis of the above scheme:

1 ESTABLISHMENT AND PURPOSES/OBJECTIVES

The Transitional Executive Council shall be constituted with executive powers to facilitate, in conjunction with existing legislative and executive structures, the transition to a democratic order in South Africa by:

(a)     to eliminate any impediments to legitimate political activities;

(b)     to eliminate intimidation;

(c)     to ensure that political parties and organisations will be free to canvass support from voters, to organise and hold meetings, and to have access to voters for such purposes;

(d)     to ensure that the power of government will not be used to favour or prejudice any political party or organisation;

2 COMPOSITION

of the Council.

NOTE: The implications of this sub-paragraph are that the size of the TEC will not be greater than the number of parties involved in the MPNP, that representation is confined to one representative per party in view of the large number of parties already involved in the process, and that evety party does not have te be represented on the TEC. Substitutes have been provided for in view of the high percentage of concurring votes required for decisions to be reached.

(5)     The conditions of service, remuneration, allowances and other benefits of members of the TEC shall be determined by State President in consultation with the Multi-Party Negotiating Process.

NOTE: The committee has noted that the Report of Working Group 3 to Codesa 2 (par 38) suggests that members of the TEC should be full-time executives. The Committee is not persuaded that this would be necessary, and would prefer not to make a specific recommendation until the full picture of the TEC and its sub-councils has evolved.

Factors that influenced the Committee include the following:

(i)     the TEC itself may be in a better position to judge on this matter;

(ii)     sub-councils might rather be engaged on a daily basis, and the TEC on a periodic basis;

(iii)     while some members of the TEC will have full-time briefs as members of sub-councils, others may not. This issue can be revisited later.

3 POWERS

NOTE: The question of powers is still to be dealt with by the Committee.

(a)     to request information relating to its mandate,

(b)     to establish and receive reports from sub-councils,

(c)     to initiate or participate in negotiations in respect of its mandate,

(d)     to appoint required staff and to determine their terms of employment and remuneration,

(e)     to request seconded staff from the Public Service(s);

(f)     to make rules governing the convening and conduct of its meetings and those of its sub-councils, and

(g)     to appoint/elect its own office bearers on a permanent or rotational basis.

(h)     to appoint a person to investigate a matter or matters relating to its functions, and to report thereon.

4 SUB-COUNCILS: ESTABLISHMENT, COMPOSITION, APPOINTMENTS AND POWERS

(a)     A sub-council on local government;

NOTE: The committee is aware of the fact that Working Group 3 of Codesa has anticipated the establishment of a sub-council on regional and local government, and will in due course advise as to whether it is of the view that, in the light of the possible establishment of a commission on regions, there is a need for this sub-council to also concern itself with regional government.

(b)     A sub-council on law and order, stability and security;

(c)     A sub-council on defence;

(d)     A sub-council on finance; and

(e)     A sub-council on foreign affairs.

     NOTE:     The Committee interprets this clause to mean, first, that not more than two persons from the same party would serve on a sub-council, and second, that the inclusion of individuals who are not members of the TEC is not precluded. The very function of a sub-council is to be a small and effective working group, and some sub-councils may not even have to have six members, whereas others may require more.

(5)     The conditions of service, remuneration, allowances and other benefits of members of the sub-councils shall be determined by State President in consultation with the Multi-Party Negotiating Process.

     NOTE: Members of sub-councils should serve in a full-time capacity, but the Committee is not convinced that this should be prescribed by statute. It is not anticipated that persons who are in the full-time service of any government or administration will have to be remunerated.

     NOTE: The TEC will have general powers to establish any sub-council in addition to those mentioned in (1) above, to assist it in performing its functions. In view of the more extensive jurisdiction of the IEC and in view of the general brief of the TEC, the Committee did not deem it necessary to rigidly prescribe a further sub-council on elections, as envisaged in the Codesa report.

5 JURISDICTION AND DISPUTES

(2)     (a)     All governments and administrations will keep the Transitional Executive Council informed of, and will provide it with copies of all proposed legislation, including proclamations, bills and regulations of governments or administrations that may be relevant to the purposes referred to in paragraph 1.

(b)     If the Transitional Executive Council has reason to believe that any proposed legislation, including bills, ordinances, proclamations or regulations, will have an adverse impact upon any of the purposes referred to in paragraph 1, it may, after taking into account the necessity for such legislation, require the government or administration concerned not to proceed therewith.

(3)     (a)     All governments, administrations and participants will keep the Transitional Executive Council informed and the Transitional Executive Council will be entitled to ask for and to receive from them, information in regard to proposed executive actions by any government or administration, or contemplated actions on the part of any other participant in the Transitional Executive Council, that may have an impact on any of the matters referred to in paragraph 1.

(b)     If the Transitional Executive Council has reason to believe that the implementation of such executive or other action will have an adverse impact upon the purposes referred to in paragraph 1 it may, after taking into account the necessity for such action as far as such government, administration or participant is concerned, require the government, administration or participant not to proceed therewith.

(5)     Any differences as to whether or not in any particular instance a matter falls within the scope of the powers of the Transitional Executive Council, or one of its sub-councils, or whether any proposed action or legislation will have an adverse impact on any of the objectives referred to in paragraph 1, such difference may be referred by any government, administration or participant to the Independent Election Commission for its decision.

(a)     the disputed issue;

(b)     the views expressed thereon by the members of the Transitional Executive Council and by the complainant government, participant or administration; and

(c)     any other matter considered by the Independent Election Commission to be relevant to its decision determine the difference and give its decision thereon.

     NOTE: A final recommendation on the adjudicatory function of the Independent Election Commission will only be possible after consideration of the report and recommendations of the Technical Committee on the Independent Election Commission.

     NOTE: The question of restricted access to certain categories of information has still to be discussed. in this regard the Committee does not want to anticipate the outcome of this discussion.

6 MEETINGS

(a)     carry out all duties assigned to him or her by the Transitional Executive Council;

(b)     convene special meetings of the Transitional Executive Council if required to do so in writing by not less than one third of its members;

(c)     fix a time, date and venue for any meeting called in terms of sub-paragraph (b) which, save in the case of urgency, shall be convened on not less than three days notice to the members of the Transitional Executive Council: provided that an urgent meeting may be called on short notice if the calling of the meeting on short notice is ratified by the Transitional Executive Council at such meeting.

(5)     Fifty percent of the members of the Transitional Executive Council shall constitute a quorum for any meeting: provided that this provision shall not detract from the provisions of paragraph 7.

7 DECISIONS

(5)     If a decision taken in terms of sub-paragraph (3), is not referred to the Independent Election Commission in terms of sub-paragraph (4), it shall, after the expiry of the period of three days, become final and binding, and shall not be subject to appeal or review in any court.

8 FINANCES

NOTE: The method of financing the TEC and sub-councils will require further investigation and the Committee will report in due course on such further investigation.

9 AMENDMENT

This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. Return to the Nelson Mandela Centre of Memory site.