219. Telegram From the Department of State to the Mission in Geneva 1
265403. For Frank Wisner only. Subject: Annex C.
Per your request following is text of Annex C (with Rogers added para 10) as of September 12, 1976, which is the currently operative text.
Rhodesia: Possible Constitutional Arrangements for the Period of Transition
- It is postulated that:
- Any interim administration must be legalized by the British Government;
- Britain would appoint a British Government representative in Salisbury.
- In British domestic law, Rhodesia remains a British colony and the Queen (as Queen of the United Kingdom) is the sovereign of the territory. This would remain the legal position until the time came to grant independence.
- In order to legalize the situation in Rhodesia, following agreement on a constitutional settlement, it would be necessary for the British Parliament to pass a new act. The 1965 Southern Rhodesia Act does not confer powers to suspend or revoke the Rhodesian constitution of 1961 or to amend that constitution out of all recognition. But the 1961 constitution would not provide an appropriate framework for the period of transition.
- The new act would be an enabling instrument, i.e, it would empower the British Government to impose constitutional change in Rhodesia by orders in Council (which would probably have to be subject to an affirmative resolution by both houses of the British Parliament). A bill to enact an amendment to the 1965 legislation could not be introduced in the British Parliament until it reassembles in mid-October (unless it were to be recalled earlier for that special purpose).
It would in any case take time to prepare the necessary consequential legislation. One major technical problem is posed by the need to determine which of the post-UDI enactments of the Rhodesian Parliament should be retrospectively validated and which should be annulled or amended. It would also be necessary to provide for a political [Page 613] amnesty which would, on the one hand, free political detainees and prisoners from Rhodesian restraints and, on the other, protect members of the administration against prosecution or civil suit for past illegal acts.
Legislative and Executive Authority in Rhodesia
- The new act would have to vest legislative and executive authority within Rhodesia in local organs of government. We envisage the formation of a two tier system, comprising a “Council of State” and a “Council of Ministers” and providing for internal checks and balances, designed as far as possible to be self-regulating and to obviate the need for the British Parliament to intervene in the Government of Rhodesia during the transitional period.
While the form of any interim administration would be partly a matter for the British Parliament, its composition would be a matter for decision by the Rhodesians themselves. The responsibility for choosing the members of the Council of State and of the Council of Ministers must lie in Rhodesia, even though the formal appointment of members of the former will have to be made by the Queen of the United Kingdom. At the same time, the allocation of responsibilities set out below must be based on the assumption that the members of the organs of government during the interim period would, by and large, have been chosen from among those who genuinely subscribed to, or acquiesced in, the aim of a rapid and orderly transition of majority rule.
The Council of State
- For the Council of State, we could envisage the following:
- Composition: The Council would be composed of between 5 to 7 members, with a pre-determined ratio, which would have to be maintained throughout, between the European and the African members. The members of the Council would elect their own Chairman. He would be primus inter pares and would have no special status. The ratio of membership could be 3 to 2 or 4 to 3 in favor of the Africans; or there could be parity but in that event it would be laid down that the Chairman of the Council would be African.
- Appointment of members: By the Queen of the United
Kingdom, formally acting on the advice of her Secretary of
State for Foreign Affairs, but the latter would have no
power of choice: he would endorse local Rhodesian choices.
- The composition of the first Council of State would be decided in the course of negotiations between the European caretaker government and the African nationalists. In the event that they were unable to reach consensus, the European and African sides would both have the right to nominate the number of representatives to which they were respectively entitled. Neither side could veto the choice of the [Page 614] other: all those nominated would have to take an oath binding themselves to work for a rapid and orderly transition to majority rule. An additional safeguard (and this would point to a 7—rather than a 5 or 6 man Council) would be to provide that the Europeans and Africans would have the right to nominate one member of the other race.
- Subsequent appointments would be by co-option, requiring at least a two-thirds majority. The only proviso would be that a departing member must be replaced by someone of the same race or that, where a departing member had been initially nominated by the other side, the choice of the replacement would lie solely with the members of that other side.
- Voting: The decisions of the Council would normally be taken by consensus: where a vote was necessary, at least a two-thirds majority should be required, except that a decision to dismiss the Chief Minister or the Chief of Staff of the armed forces would have to be unanimous.
- Legislative authority: Full legislative authority would be vested in the Council: it alone would have power to enact primary legislation, though it could delegate its powers in respect of subordinate legislation to the Council of Ministers or to individual ministers. Responsibility for initiating proposals for legislation would rest with the Council of Ministers though, in the spheres mentioned in (V) (A) below, the Council of State would have power to amend the former’s proposals and elsewhere to suggest amendments. These latter would stand unless overriden by a vote of a pre-determined size in the Council of Ministers.
- Executive powers:
- The Council of State would have ultimate authority in matters related to the implementation of the programme for progress to majority rule and (see also VI below) to defense and internal security. In both spheres, it could issue directives to the Council of Ministers to individual ministers or to officials.
- It would have the right to be kept informed of the proceedings of the Council of Ministers (one possibility would be to arrange for a joint secretariat to service both Councils).
- The Council would be responsible for the appointments and dismissal of all members of the Council of Ministers, at its discretion alone; other appointments and dismissals, and the allocation of portfolios, would, however, be made only after consultation with the Chief Minister, whose advice would be binding.
- The Council would also be responsible for the appointment and dismissal of: members of the judiciary (whose dismissal would, however, be subject to the usual safeguards); the chiefs of the armed forces [Page 615] and of the police; and the senior members (down to a grade to be determined) of the public service.
The Council would also exercise the prerogative of mercy.
The Council of Ministers
- For the Council of Ministers, we could envisage the following:
- Appointment of members: See paragraph 8 (IV) (C) above.
- Composition: The Council would be composed of a Chief Minister, who would be an African, and would contain a majority of African members.
- Voting: Normally, under the doctrine of collective responsibility, no vote ought to be necessary but, where there was a clear division of opinion, it might be necessary to provide for a vote to be taken. In such an event, it would be important to ensure that a mere majority did not suffice; for that could, theoretically, lead to a situation in which the European members were permanently outvoted. One possibility would be to provide for a two thirds majority to be required as the norm and, where this could not be achieved, for the decision to lie with the Council of State.
- The quorum: It would be necessary to make provision for a quorum, perhaps of a least half of the African and half of the European members.
The Council’s business: The initiative for proposing the agenda would lie with the Chief Minister, but every member of the Council would be entitled to propose items for agenda and should have the right to insist on their being discussed.
The British Role
- The organs of government would have authority for a predetermined period perhaps not exceeding two years.
- Britain would remain responsible for external affairs during the interim period and there would be a British Government representative in Salisbury. He would not be a representative of the Queen. His function would be quasi-diplomatic: to monitor the programme of progress to majority rule and, where necessary, to make available his good offices to mediate in any matter affecting the carrying through of the programme.
- Source: Ford Library, National Security Adviser, Presidential Country Files for Europe and Canada, Box 13, Switzerland—State Department Telegrams, From SecState—Nodis (4). Secret; Immediate; Nodis. Drafted and approved by Schaufele.↩