NELSON MANDELA - THE GREATEST NEGOTIATOR OF … · NELSON MANDELA - THE GREATEST NEGOTIATOR OF THE 20TH CENTURY? ... down in brotherhood” and create ... Government that they would

NELSON MANDELA -

THE GREATEST

NEGOTIATOR OF THE

20TH CENTURY?

Page 2

INTRODUCTION

Page 3

CONTENT

• NEGOTIATION SYNOPSIS

• SOME NEGOTIATION LESSONS

• In summary

• In more detail

Page 4

SOURCES

• Nelson Mandela as Negotiator : What Can We Learn from Him?

• Hal Abramson, Professor of Law, Touro Law Centre, New York

• Bargaining with the Devil

• Robert Mnookin, Chair, Program on Negotiation, Harvard Law School

• Anatomy of a Miracle – The end of Apartheid and the Birth of the New South Africa

• Patti Waldmeir, Washington .D.C. – based journalist working for the Financial Times

Page 5

• 1941 – Mandela arrived in

Johannesburg from Mveso and joined

the ANC

• 1948 – The Nationalist Party came to

power and Apartheid was intensified

• 1950 – The South African Communist

Party was banned

NEGOTIATION SYNOPSIS

Page 6

• 1953 – Mandela advocated armed

resistance and the ANC NEC

censured him

• 1958 – Hendrik Verwoerd became

Prime Minister

• 1960 – Sharpeville PAC rally was put

down and 69 people were killed


Page 7

• 1960 – a state of emergency was

declared and the ANC and PAC

were banned

• 1961 – Tambo went into exile and

began to organise foreign support

• 1961 – Mandela went underground


Page 8

• 1961 – Mandela wrote to Verwoerd

and demanded a national

constitutional convention in which

representatives of all races would “sit

down in brotherhood” and create

“a new national democratic

constitution” – Mandela

• Failing this Mandela threatened a

three day national strike


Page 9

• 1961 – The Government responded by

arresting about ten thousand people

• 1961 – The ANC gave Mandela its

blessing to establish Umkhonto we

Sizwe

• 1962 – Mandela was arrested and

sentenced to 5 years for leaving the

country without a passport and for

incitement

• 1963 – The leadership of Umkhonto we

Sizwe arrested at Liliesleaf Farm Rivonia


Page 10

• 1964 – Mandela was sentenced to life

imprisonment for sabotage

• 1964 – 1982 – Mandela was imprisoned

on Robben Island and negotiated and

mediated between his fellow prisoners

and the prison authorities


Page 11

• 1973 – The Durban wave of strikes took

place

• 1976 – The Soweto student uprising

occurred

• 1977 – Steve Biko was killed

• 1979 – Black trade unions were

legalised


Page 12

• 1980’s – The Anti-Apartheid movement

abroad grew

• 1980’s – A series of MK bombings

occurred

• 1983 – The United Democratic Front

was formed and organised resistance

and mass action


Page 13

• Between 1964 and 1985 both the ANC

and the Government refused to

negotiate

• Both believed negotiations would be a

sign of weakness and required

significant concessions from the other

before negotiating


Page 14

• The Government demanded that the

ANC renounce violence

• The ANC demanded:

• the release of political prisoners

• the return of exiles

• the lifting of the ban on the ANC


Page 15

• 1982 – Mandela was moved to

Pollsmoor Prison and given preferential

treatment in what he called the

“penthouse”

• Mandela began to receive hints from

Government that they would release

him if he renounced the use of

violence

• The Government also started to send

Mandela negotiation “feelers”


Page 16

• On January 31, 1985 President Botha

publicly offered Mandela his freedom if

he “unconditionally rejected violence

as a political instrument”

• Mandela smuggled a speech out of

prison in which he said “Only free men

can negotiate… I cannot and will not

give any undertaking at a time when I

and you, the people are not free”


Page 17

• July 1985 a limited State of Emergency

was declared

• During 1985 Mandela concluded that it

was time to change strategy and

negotiate

• Mandela then sent a secret letter to

Coetsee – The Minister of Justice, but

got no response


Page 18

• 1985 – Minister Coetsee made a

surprise visit to Mandela in hospital

• Mandela said “The Government, in its

slow and tentative way, was reckoning

that they had to come to some

accommodation with the ANC.

Coetsee’s visit was an olive branch.”

• 1985 – Mandela was given his own

house at Pollsmoor prison

• Mandela knew that if he started to talk

to Government it would be

contravening the ANC’s preconditions


Page 19

• But Mandela said he believed:

“If we did not start a dialogue soon,

both sides would be plunged into a

dark night of oppression, violence

and war. My solitude would give me

an opportunity to take the first steps

in that direction, without the kind of

scrutiny that might also destroy such

efforts,”... “I would have to adopt a

strategy that would enable me to

confront people with a fait

accompli. I was convinced that was

the only way.”


Page 20

• Mandela therefore decided to initiate

talks and said “I chose to tell no one

what I was about to do. Not my

colleagues upstairs or those in Lusaka”

• Mandela knew they would not agree

• He said “There are times when a leader

must move out ahead of the flock, go

off in a new direction, confident that

he is leading his people the right way.”


Page 21

• 1986 – President Botha ordered air raids

on ANC bases

• 1986 – The Commonwealth imposed

sanctions on South Africa

• 1986 – The ANC called on the people

to make South Africa ungovernable

• 1986 – A National State of Emergency

was declared


Page 22

• 1986 – Mandela requested another

meeting with Minister Coetsee

because he said:

“In every outward way, the time

seemed inauspicious for

negotiations, but often, the most

discouraging moments are

precisely the time to launch an

initiative.”


Page 23

• 1986 – Minister Coetsee agreed to

meet

• 1986 – Minister Coetsee met Mandela

and Mandela asked to meet President

Botha

• 1986 – President Botha refused to meet

Mandela but told Minister Coetsee to

keep talking


Page 24

• May 1986 – Minister Coetsee suggested

an expansion of the talks to include a

Special Committee

• Mandela agreed even though it

included Barnard – the head of the

secret police

• Mandela got post facto permission

from Tambo (via Bizos)to make contact

with Government


Page 25

• Tambo however had second

thoughts about the talks with

Government

• But Mandela placated him by

assuring him that the talks were

“about one thing and one thing

only: a meeting between the

National Executive Committee of

the ANC and the South African

government.”

• Mandela met with the Special

Committee forty-seven times and

in fact the talks were about

much more than a meeting

between the ANC and

Government


Page 26

• The four main issues that emerged in

the talks with the Committee were:

• the armed struggle

• the SACP alliance

• majority rule

• racial reconciliation


Page 27

• 1988 – Mandela was moved to even

more spacious and comfortable

quarters at Victor Verster Prison

• July 1989 – Mandela met President

Botha and said:

“Mr. Botha had long talked about

the need to cross the Rubicon, but

he never did it himself until that

morning… Now, I felt, there was no

turning back.”


Page 28

• August 1989 – President Botha resigned

and de Klerk succeeded him

• Mandela engaged via the Special

Committee with President de Klerk

• 1989 – President de Klerk released eight

high profile political prisoners including

Walter Sisulu


Page 29

• Late in 1989 – Mandela met President

de Klerk and said:

“Mr. de Klerk listened to what I had

to say,”... “This was a novel

experience. National Party leaders

generally heard what they wanted

to hear in discussions with black

leaders, but Mr. de Klerk seemed to

be making an attempt to truly

understand.”


Page 30

• Mandela and President de Klerk began

to negotiate about Mandela’s release

• Mandela wanted:

• the release of all remaining political

prisoners


• the unbanning of the ANC

• the end of the state of emergency

• then his release


Page 31

• Mandela did not make any

concessions in the secret negotiations

• On 2 February 1990 President de Klerk

met these demands and:

• unbanned the ANC

• released political prisoners

• suspended the death penalty

• lifted much of the state of

emergency

and said “The time for negotiation has

arrived.”


Page 32

• Mandela said:

“It was a breathtaking moment,”…

“for in one sweeping action he had

virtually normalized the situation in

South Africa.”


Page 33

• 9 February 1990 – President de Klerk

told Mandela that he would be

released on 10 February at a news

conference in Johannesburg

• Mandela demanded to stay in prison

for another week

• A compromise was reached that he

be released from Victor Verster

prison on 10th February 1990


Page 34

• On Mandela’s release the big

issues then had to be negotiated

by the ANC and Government

• In May 1990 formal talks began at

Groote Schuur Estate Cape Town

• In August 1990 the ANC suspended

the armed struggle but internal

violence escalated


Page 35

• The big issues were:

• one man one vote vs white veto or

group rights

• unitary or federal state

• affirmative action

• property rights


Page 36

• In December 1991 formal multi-party

talks began (CODESA I)

• Much progress was made in CODESA I

talks between December 1991 and

May 1992

• June 1992 – The Boipatong massacre

occurred in which 45 people were

killed

• September 1992 – The Bisho massacre

occurred in which 29 people were

killed


Page 37

• CODESA 1 collapsed but a “channel

bilateral” between Ramaphosa and

Meyer continued talks

• In April 1993 Chris Hani was

assassinated

• April 1993 – CODESA II commenced

• In November 1993 – agreement on an

Interim Constitution was reached


Page 38

• In essence, as Mnookin says:

“It was a classic liberal constitution providing for three branches of government, an independent judiciary, and a bill of rights protecting individual human and property rights. The new South Africa would be a parliamentary democracy based on one man, one vote. There would be no white veto of any sort, no “group rights.” For five years, there would be a transitional government in which all significant political parties would be represented. Thereafter, a government would be formed on the simple basis of majority rule.”


Page 39

• The ANC prevailed on all of its core

political issues

• Each clause was carefully

considered and agreed to by the

ANC to achieve a mutual gain and

comprehensive settlement

• In particular, the equality clause 9

was meticulously crafted to

achieve all that the ANC wanted


Page 40


• In addition, the property clause 25 was drafted to achieve all that the ANC wanted in relation to expropriation

• Judge Albie Sachs, one of the ANC’s key drafts people, recently said of the clause:

"We knew land is central, emotional with blood and history - it's vital for food security. The most hotly debated constitutional section was the property clause. We fought and debated over every clause and every word….”

“the Constitution puts a duty on government to provide access to land to the people who have been historically denied. Immediate land back for those removed and programmes for massive rolling out of land reform for those dispossessed. The small titles people have must be upgraded."

Page 41


• Judge Albie Sachs went on to say:

“It's not willing seller; willing buyer.

There has to be compensation for

expropriation, but it has to be just and

equitable….Compensation should

take into account the history and the

social needs of the people…It's

possible for the issue to be worked out

by the courts to have prices well

below the market value - consistent

with the Constitution."

“The Constitution allows for land

everywhere including urban or peri-

urban areas to be expropriated for

housing….the needs of the people

for housing must be entered too."

Page 42

SOME NEGOTIATION LESSONS

IN SUMMARY

• Patience

Page 43


IN SUMMARY

• Preparation

Page 44


IN SUMMARY

• Practice

Page 45


IN MORE DETAIL

• Proper preparation

• An appreciation of the Best Alternative to a Negotiated Agreement – BATNA

• A focus on Interests

• Separating People from the Problem

• Avoiding Stereotyping

• Building Relationships

• Appreciating the Mandating Dynamic

• Listening

• Dealing with Deadlock and Setbacks

Page 46


PROPER PREPARATION

• Mandela appreciated that for substantive negotiations to succeed, the conditions for

those negotiations needed to be right

• He understood that much had to be done both substantively and procedurally to be

ready for formal negotiations

• He therefore spent years patiently waiting for these conditions to be right and

preparing for the negotiations both procedurally and substantively

Page 47


AN APPRECIATION OF BATNA

• As early as 1953 Mandela began to believe that peaceful protest alone would never

bring about change

• He realised that a negative alternative to a negotiated settlement with the ANC had

to be created for the Government and that a starting point for this was armed

resistance

• As Mnookin says “Mandela hated violence but was not a pacifist… He understood the

power of violence and used it strategically – to force the government to negotiate”

Page 48



• Mandela explained his decision to resort to violence as follows:

“I did not plan it in a spirit of recklessness nor because I have any love of violence. I

planned it as a result of a calm and sober assessment of the political situation that

had arisen after many years of tyranny, exploitation, and oppression of my people

by whites. We of the ANC… shrank from any action which might drive the races

further apart than they already were. But the hard facts were that fifty years of

nonviolence had brought the African people nothing but more repressive

legislation, and fewer and fewer rights.”

• In addition he said:

“Non-violent passive resistance is effective so long as your opposition adheres to

the same rules as you do. But if peaceful protest is met with violence, its efficiency

is at an end… [T]here is no moral goodness in using an ineffective weapon” -

Page 49



• Mandela also realised that armed resistance alone would not create a sufficient

negative BATNA for the Government

• He said “[We] could not defeat the Government on the battlefield, but could make

governing difficult for them”

• As Abramson says “Mandela believed that ultimately apartheid would not be

defeated by an armed struggle; he understood its limits. It would be defeated by

negotiation”

Page 50



• So Mandela waited nearly twenty years until, in addition to the armed struggle, a

significant negative BATNA had been developed via:

• the rise of Union activity from 1973 onward

• the Soweto student uprising of 1976

• the actions of the United Democratic Front in rendering the country ungovernable

• international economic sanctions and isolation

• Socratic trials

Page 51



• Even though he appreciated the limits of armed struggle, he refused to renounce

violence in order to secure his release from prison or upon his release

• He wanted to maintain it, both to satisfy his constituency and as one of his bargaining

chips

Page 52



• He said: “we express the hope that a climate conducive to a negotiated settlement

will be created soon so that there may no longer be the need for armed struggle.”

• In the end, the outcome the ANC achieved in the constitutional negotiations could

never have been achieved without weakening the government’s BATNA and

strengthening the ANC’s

• Therefore Mandela “rejected the simple-minded notion that one must either

negotiate with the devil or resist. He did both” - Mnookin

Page 53


A FOCUS ON INTERESTS

• Mandela understood that the difference between interests and positions was that an

interest is a basic need whereas as position is a means of addressing an interest

• He was constantly assertive of his and the ANC’s interests but flexible on positions to

meet those interests

• Mandela also sought to understand other people’s interests and to find ways of

meeting those interests without compromising his or the ANC’s interests

Page 54



POSITIONAL vs NEEDS BASED NEGOTIATION

Page 55



POSITIONAL vs NEEDS BASED NEGOTIATION

Page 56



• For example, at a press conference on the day after his release he carefully

addressed white South Africans’ need for recognition, security and economic stability

as follows:

“I wanted to impress on the reporters the critical role of whites in any new

dispensation…. We did not want to destroy the country before we freed it, and to

drive the whites away would devastate the nation. I said that there was a middle

ground between white fears and black hopes… “Whites are fellow South Africans,”

I said, “and we want them to feel safe and to know that we appreciate the

contribution that they have made toward the development of this country.” Any

man or woman who abandons apartheid will be embraced in our struggle for a

democratic, non-racial South Africa…”

Page 57



• Upon his release Mandela stated his key interests to be:

“for a democratic, non-racial and unitary South Africa… and an end to white

monopoly of political power and a fundamental restructuring of our political and

economic systems”

• Mandela also always tried to find overlapping interests and common ground

• For example, when he first met President Botha, he “drew parallels between their rival

nationalisms” – the Afrikaner nationalism and its rebellions, which pitted white brother

against brother, and the ANC’s nationalism, which involved a struggle “between

brothers who happen to be different colours”

Page 58



• The conflict between the Government’s demand for group rights to protect white

interests and the ANC’s demand for majority rule was eventually resolved by means of

the Bill of Rights which protected everyone’s interests, including those of minorities

• This is an example of how the Government’s and the ANC’s underlying interests were

met, notwithstanding initial conflicting positions

Page 59



• Mandela also prioritised the peoples’ interests above his own and said:

“I cherish my own freedom dearly, but I care even more for your freedom. Too

many have died since I went to prison. Too many have suffered for the love of

freedom. I owe it to their widows, to their orphans, to their mothers and to their

fathers who have grieved and wept for them. Not only I have suffered during these

long, lonely, wasted years. I am not less life-loving than you are. But I cannot sell

my birthright, nor am I prepared to sell the birthright of the people to be free. I am

in prison as the representative of the people and of your organisation, the African

National Congress, which was banned.”

Page 60



• Therefore when he was offered release from prison on condition that he publicly reject

violence, unlike some others, he rejected it

• He only accepted it when the Government had agreed to conditions conducive to

constitutional negotiations namely:

• the release of all remaining political prisoners


• the unbanning of the ANC

• the end of the state of emergency

Page 61


SEPARATING PEOPLE FROM THE PROBLEM

• Mandela was a master at separating people from the problem

• For example, he said:

“The liberation struggle was not a battle against any one group or colour, but a

fight against a system of repression.”

• He said further:

“I wanted South Africa to see that I loved even my enemies while I hated the

system that turned us against one another.”

Page 62


SEPARATING PEOPLE FROM THE PROBLEM

• He also said:

“No one is born hating another person because of the colour of his skin… People

must learn to hate, and if they can learn to hate, they can be taught to love…”

• In addition he said:

“In prison, my anger toward whites decreased, but my hatred of the system grew. I

hated the system that turned us against one another”

Page 63


AVOIDING STEREOTYPING

• He saw his political adversaries as individual people and avoided the simplistic

generalisations and assumption associated with identity politics

• Thus he said of his white guards:

“Men like Swart, Gregory and Warrant Officer Brand reinforced my belief in the

essential humanity even of those who had kept me behind bars for the previous

twenty-seven and a half years.”

Page 64


BUILDING RELATIONSHIPS

• Mandela was an expert at building relationships with his adversaries

• For example he said that he “adopted a policy of talking to the wardens and

persuading them to treat us as human beings. And a lot of them did, and there were

lots of things we could talk about. And the lesson was that one of our strongest

weapons was dialogue. Sit down with a man [and] if you have prepared your case

very well, that man… will never be the same again”

• Mnookin points to another example. Mandela, he says “tried to establish a “personal

link” with each member of the [Special Committee]… The trust Mandela earned with

these simple gestures “counted for far more than Mandela’s policy position on any

particular issue”

Page 65


BUILDING RELATIONSHIPS

• Waldmeir also mentions that Mandela won the hearts of his own followers in a similar

way:

“They came in pilgrimage to their legendary leader, and he made each feel

special. He knew the names of wives and children; had followed the career of

each one with attention; he awed them with his grasp of the South African

political situation. They left under the same spell of seduction as their enemies.”

Page 66


APPRECIATING THE MANDATING DYNAMIC

• Mandela demonstrated a keen understanding of the mandating dynamic

• His special treatment in prison and the negotiations in prison caused suspicion among

ANC followers and his mandate givers

• He was very conscious of this and appreciated that he needed to build trust among

them in order to get the mandates he needed

Page 67



• He says, for example, of his first meeting after his release with the ANC leadership in

Lusaka:

“I could see the questions in their eyes. Was Mandela the same man who went to

prison twenty-seven years before or was this a different Mandela, a reformed

Mandela? Had he survived or had he been broken?”

• In his inimitable way he communicated openly, honestly and empathetically with

them and won their confidence and support

Page 68



• He also appreciated that his engagement with his mandate givers was a kind of

negotiation

• He did not see himself as the mere messenger of his mandate givers

• Instead, he saw himself as a leader and said he learnt from his guardian, the Thembu

regent that “a leader… is like a shepherd. He stays behind the flock, letting the most

nimble go out ahead, whereupon the others follow, not realizing that all along they

were being directed from behind”

Page 69



• An example of this was when following the Boipatong Massacre his followers urged

him to cease negotiations and revert to violence. He said:

“We must accept that responsibility for ending violence is not just the

government’s the police’s, the army’s. It is also our responsibility… If you are going

to kill innocent people, you don’t belong to the ANC. Your task is reconciliation.”

Page 70



• When some objected he went to the brink:

“Listen to me! Listen to me! I am your leader. As long as I am your leader I am

going to give leadership. So you want me to remain your leader?”

• The crowd roared back, it did

• Mandela also appreciated how, like a mediator, he could explore substance without

a mandate in order to assist him to get a mandate if necessary.

Page 71


LISTENING

• Mandela was also a consummate listener

• He said:

“I have always endeavoured to listen to what each and every person in a

discussion had to say before venturing my own opinion”

Page 72


DEALING WITH DEADLOCK

• Waldmeir says of the collapse of CODESA II that:

“Even in the dark hours, the ANC and the National Party kept their sights firmly fixed on

the dawn. While Mandela and de Klerk were trading insults from Boipatong to Bisho,

their two young lieutenants – Cyril Ramaphosa, thirty-nine, and Roelf Meyer, fourty-four

– were meeting secretly to look for a deal. Between June and September 1992, they

met something like forty-three times in what became known as “the channel”. More

than any other two men – indeed, arguably more than Mandela and de Klerk

themselves – it was Ramaphosa and Meyer who opened the road to peace, and kept

it open right up until the election.”

• Mandela thus demonstrated how to use his team and to mix formal with informal

negotiation to overcome obstacles

Page 73

CONCLUSION

• Mnookin says of Mandela:

“Mandela understood that the goal of negotiation is to persuade your adversaries.

He ultimately achieved through negotiation an outcome that could never have

been accomplished solely through violence or resistance. Moreover, he did this

without making any concessions with respect to his core political beliefs. Why was

he so persuasive? I don’t want to claim that the implicit threat of black violence

played no role. But fear of civil war does not fully explain why de Klerk and the

Afrikaners were able to make concessions to Mandela.

The explanation lies in the fact that Mandela was a negotiator to whom one could

make concessions and yet maintain one’s self-respect. Mandela worked hard to

establish and maintain a personal, human connection with Afrikaner leaders

whose life experiences and attitudes were radically different from his own. These

leaders came to see that Mandela really believed in racial reconciliation. They

saw that his vision for South Africa included them.”

Page 74

CONCLUSION

• “Peace was made,” Waldmeir concludes, “because Mandela was able to persuade

such Afrikaners that he had the best interests of the nation – their nation, his nation, the

South African nation – at heart. They learned to trust him with their fate.”

Page 75

CONCLUSION

• Obama said of Mandela that he:

“taught us the power of action, but… also… ideas; the importance of reason and

arguments; the need to study not only those you agree with, but those who

don’t… Mandela understood the ties that bind the human spirit. There is a word in

South Africa – Ubuntu – a word that captures [his] greatest gift : his recognition that

we are all bound together…

Page 76

CONCLUSION

• Mnookin concludes that:

“I would award him the title of the greatest negotiator of the twentieth century”

“You have seen his patience and tenacity. When negotiating with his adversaries,

he was respectful but never fawning or sycophantic. He demanded respect in

return. You’ve seen his pragmatism. He hated violence but was not a pacifist. He

understood the power of violence and used it strategically – to force the

government to negotiate. He rejected the simple-minded notion that one must

either negotiate with the Devil or forcibly resist. He did both. He was willing to make

concessions, but not about what was more important to him. With respect to his

key political principles, he was unmovable.

But the most important lesson goes to the core of this book: We must reject as

foolish the categorical claim that it is wrong to negotiate with an evil adversary.

Mandela hated the apartheid regime, which most people would agree was evil.

But he didn’t demonize whites, including those who participated in the oppressive

regime”

Page 77

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NELSON MANDELA - THE GREATEST NEGOTIATOR OF … · NELSON MANDELA - THE GREATEST NEGOTIATOR OF THE 20TH CENTURY? ... down in brotherhood” and create ... Government that they would