Political trial

I recently returned from South Africa where I served as a trial observer. I am pleased to share with you some of my observations.

My mission was that of a trial observer. A word of explanation on trial observers is in order. Since 1894, when Victoria, the reigning Queen of England, sent her Lord Chief Justice to observe the Alfred Dreyfus treason trial, Governments and private organizations have assigned legal observers to various trials, particularly those with political and/or human rights implications. Between 1949 and 1980, over 323 separate trials and appellate proceedings were observed by over a dozen different organizations, including the International Commission of Jurists and the Lawyers` Committee for Civil Rights under Law. It was the latter organization, the Lawyers` Committee, a Washington-based lawyers group founded at the behest of former President John F. Kennedy, that asked me to undertake this mission.

Sixteen persons had been indicted on treason and terrorism charges. Specifically, I was asked to be present in Pietermartizburg for the proceedings being held in connection with an effort to dismiss the indictment. This phase was regarded as crucial to the outcome of the case.

It is important to understand both the background of the charges, as well as the charges for which these defendants were indicted, and the nature of the laws which gave rise to them. In this regard, I will focus on the internal security laws that are used to enforce the racially segregated social, political and economic system that is apartheid and the regulations pertaining to the State of Emergency. This combination of laws renders the black majority politically, legally and constitutionally impotent. For breaches of this discriminatory arrangement, thousands of persons are jailed and prosecuted, and therefore my observations had to embrace more than the formal courtroom proceedings. I was also required to look into the day-to-day reality of apartheid.

The hearing on the defendants` motion began on 5 August 1985 and the trial itself was to begin in September. The accused are members of one of the most important opposition groups in South Africa, the United Democratic Front (UDF), which was organized in 1983 to co-ordinate opposition to the new constitution introduced by the ruling white Nationalist Party. The proposed new system of government gave limited participation rights to South Africa`s Indian and Coloured population but continued to exclude from participation the black majority. A continued white monopolization of power was guaranteed through the proposed ethnically separate, tricameral parliamentary structure and through the nature of the new executive presidency.

UDF spearheaded a boycott of the elections. The tactics employed by UDF were peaceful and open. Nevertheless, throughout the campaign, police repression was constant. Activists were harassed and assaulted, pamphlets and petition forms were confiscated, and canvassers were arrested. Meetings sponsored by UDF in a number of areas were banned and rallies were sometimes violently broken up by the police. On election day, police used tear-gas and batons against demonstrators as well as journalists covering the event.

The South African security police arrested leading members of UDF, along with individuals from other organizations who had actively opposed the new constitution. Among those arrested were eight of those now facing trial for treason.

These individuals were detained initially under a section of the Internal Security Act. The particular provision of the Act allows a police officer to arrest anyone without a warrant if he believes that the person`s actions are contributing to “the continuation of a state of public disturbance, disorder, riot or public violence”. A person so arrested can be held incommunicado for 48 hours, following which he or she must be released or redetained under a warrant which states that “the detention of a particular person will contribute towards the prevention of the resumption… of such a state of public disturbance, disorder, riot or public violence”.

Within 24 hours of their detention, these particular defendants were served with six-month “preventive detention” orders by the Minister of. Law and Order. The order of the Minister -alleged that “by acts and utterances the said person did himself and in collaboration with other persons attempt to create a revolutionary climate in the Republic of South Africa thereby causing a situation endangering the maintenance of law and order”.

Unlike section 29 of the Internal Security Act, which authorizes detention for interrogation for unlimited periods, section 28 detainees may only be held for periods specified in the Minister`s notice. Nevertheless, the detention may be extended indefinitely following a pro forma review process. In addition to the possibility of indefinite detention, the detained defendants were confronted with a permanent ban against any future involvement in political organizations. Once detained, a person`s name is recorded. By being placed on a “consolidated list” of individuals who have been gaoled, a person faces a full range of restrictions, including a ban from entering particular areas, attending any specified gathering, being quoted or published, as well as being banned from political participation.

The detention orders issued against the eight defendants were challenged successfully by defendants and were set aside on 7 September 1984 for lack of specificity. New detention orders were immediately issued, which were challenged but upheld.

The Minister of Law and Order withdrew the preventive detention orders in December 1984. The detainees were, however, immediately charged with high treason and were remanded in custody for trial.

Other prominent members of UDF were swept up in police raids in February 1985. The security police searched the homes and offices of members and affiliates of UDF and confiscated documents and records. Other arrests were carried out later in February 1985. By then, eight more individuals had been charged with treason. With respect to both the eight charged with treason in December 1984 and those arrested and charged in February 1985, the Attorney General issued certificates ordering the court to deny them bail. In so doing, he acted pursuant to the authority granted him under the Act. This grant of power to a prosecuting official is an unwarranted incursion into the powers traditionally allocated to judicial officers. No court, judge or magistrate has the power to grant bail to a person so arrested because the law removes from the court`s jurisdiction the granting of bail in relation to persons arrested for security offences.

Even so, in this case the Attorney General`s certificate denying bail was overturned upon application to the Supreme Court and the order was not appealed. It is likely that had an appeal been taken, the action of the two courageous judges would have been overturned. The judge then granted bail to the 16 defendants on the terms agreed upon by the Attorney General and counsel for the accused. Among the conditions of bail was a ban against the defendants attending or addressing any gathering of any organization mentioned in the indictment or that of any affiliated organization.

After much delay, the prosecutor delivered an indictment against the defendants on 25 April 1985. It charged that the defendants had over the past four years acted to further the aims of a number of banned organizations to “overthrow the State” and were accordingly guilty of high treason. The offence of high treason carries a possible death penalty. As alternatives to the main count of common law treason, the defendants were charged with a number of statutory offences which related to furthering the aims of various banned organizations. The organizations involved are the African National Congress of South Africa (ANC), the Release Nelson Mandela Committee, the South African Communist Party and the South African Congress of Trade Unions (SACTU).

The main charge of treason concerns an alleged conspiracy between the defendants and those organizations, which were characterized as constituting a revolutionary alliance. It should be emphasized that no “revolutionary alliance” organization exists. Nevertheless, the indictment is directed primarily to acts and purposes of the non-existent group.

The State alleges that through their membership and official positions in UDF and constituent organizations, all of the accused had accordingly identified themselves with the aims and objectives of the “revolutionary alliance” and were thus in violation of the Internal Security Act.

The overt acts on which the State is relying to infer the existence of a treasonable conspiracy are listed in over 500 pages of schedules attached to the main part of the indictment. The list consists of various public meetings attended or addressed by the accused and the State also relies on statements made by others, and songs and slogans shouted at these meetings. Those who learn of the overt acts alleged in the indictment recoil in shock and dismay.

The indictment`s overt acts list includes, among other acts, the following:

(a) Asking for unity of the people so that the system can be destroyed and another Government put up;

(b) Urging people in the audience to mobilize and politicize the masses so that the system can be broken;

(c) In a speech, propagating the release of Mandela, Sisulu, Goldberg and others;

(d) Identifying with ANC and its leaders;

(e) Joining in the singing of revolutionary songs;

(f) Popularizing the Freedom Charter;

(g) Propagating the unconditional release of all revolutionary leaders and calling for the return of those in exile.

In their attack on the indictment, the defendants asked for particulars on a number of allegations. In response, the Government conceded with respect to the opposition by UDF to some of the Government`s proposals, that “the State does not allege that the United Democratic Front acted unlawfully in uniting people and organizations” against the proposals, nor does the Government “know precisely how the revolutionary alliance used, and is using, the national Executive Committee of the United Democratic Front and the other leaders of the United Democratic Front in order to further its objects”. In two other key concessions, the Government admitted that it “does not know whether they (the defendants) acted in their capacity as leaders of the revolutionary alliance”.

These and other elements of the claims in the indictment were minutely examined during the court hearing.

Following the five-day hearing on the motion to quash, Justice John Milne issued his ruling, which upheld, in major respects, the challenge to the indictment. Amendments thereto were ordered and in some instances the flaws were held to be incurable. He then ordered that the trial proceed as if the indictment and particulars were amended as directed. The basic problem I observed was not the fairness of the proceedings, but the underlying laws that had given rise to the indictment. During informal conversations with some members of the South African judiciary, I learned that even they had to acknowledge the unfairness of the laws and the limits of judicial power to correct the evils of those laws.

The vast scope of the internal security laws did not satisfy the Government. To repress, the Government went further. On 21 July 1985, a number of regulations promulgated under the State of Emergency were added to the already extraordinary intrusive powers contained in the Internal Security Act on which the indictment was based. These regulations granted sweeping powers to the South African Defence Force (SADF) and the South African police. A member of these forces is authorized to “apply…such force as he, under the circumstances, may deem necessary…” to prevent even a suspected danger to public order.

What we have here are laws and regulations promulgated by a racial minority of the population, which holds a monopoly of political power administered by or at the direction of that same minority, and enforced against a black majority possessing no political or legal status. This raises serious questions as to the moral, legal and political legitimacy of the Government.

These questions, as they bore on the issues in the indictment, prompted me to visit the townships to meet people and observe apartheid laws in operation. I was also to see how the Internal Security Act and the emergency regulations were being used to enforce the apartheid laws in the various cities and townships. I learned that the Internal Security Act was but one mechanism of control. Most insidiously, the emergency regulations insulated law enforcement agents from judicial scrutiny. Thus, the police became licensed executioners, licensed by the Government. The extent to which extralegal means of repression were stimulated by law enforcement agents was also apparent.

Over and over again complaints were voiced about the State of Emergency. It was contended, and I agree, that the Declaration was unnecessary given the scope of provisions of the Internal Security Act. Proof of that is the fact that gaolings based on the pre-existing Security Act continued in the areas not covered by the emergency regulations. For example, between 21 July and 26 August 1985, approximately 500 persons were detained in such non-emergency areas of South Africa as Durban and Cape Town. The large number of detentions in the Eastern Cape communities supported the complaint that the emergency regulations provided a convenient method of suppressing dissent on a wholesale basis. Official police figures show that a total of 4,074 persons were detained between 21 July and 13 September 1985.

Much of the Eastern Cape area where I visited was blanketed by the emergency order. I saw raw courage manifested by individual residents, as well as the effects of the brutal force visited upon those who displayed it. In addition, the effects of this same force, unleashed on shoolchildren, passive, law-abiding adults, clergymen and helpless victims in their homes, was widespread. The police and military authorities, using their statutory and emergency powers, rounded up children, political activists and clergymen, detained them, interrogated them for days on end during which time torture and beatings in the interrogation rooms of the gaols and prisons occurred.

I was introduced to the painful reality of “disappearances”. In the Cape area, there were numerous instances of active persons being lured into situations that resulted in their disappearances and ultimate death. The horrors surrounding detentions and the conditions of confinement were graphically described to me in conversations and through affidavits. When politically active organizers “disappeared”, the police and security forces were thought to do little more than simulate investigations. Nevertheless, facts have been gathered by churches, community groups and lawyers that point to police complicity in these disappearances. In my report to the Lawyers` Committee, I included information relating to the mutilation and brutal deaths of a number of persons associated with the same organizations as those singled out by the State for prosecution.

Circumstances surrounding the disappearances and death-of the Cradock Four are most dramatic. Mathew Goniwe, Siselo Mhlawuli, Fort Calata and Mkonto Sparrow left a meeting of UDF in Port Elizabeth to return to their home in Cradock, but were never seen again alive. The automobile in which they were travelling and their bodies were discovered a few days later.

Following the disappearances and the discovery of the bodies of these four leaders of UDF, steps were taken by the Legal Resources Centre to have autopsies conducted by pathologists. Here are excerpts from the pathologists` reports:

Mkonto Sparrow – age 32

Death due to multiple injuries, the most significant being a gunshot wound to the head and two stab wounds through the heart. Body burned after death.

Fort Calata – age 29

Cause of death was stab wounds to the chest, involving the heart and pulmonary veins. Several weapons used. Body burned after death.

Siselo Mhlawuli- age 36

Right hand “clearly amputated” above the right wrist. Multiple stab wounds. Right jugular vein was severed.

Twenty-five stab wounds over the right trunk; seven stab wounds over the upper back caused by a variety of weapons.

Body burned after death.

Mathew Goniwe – age 38

Immediate cause of death was a stab wound to the heart.

Body burned after death.

In addition to documenting these murders with affidavits and autopsy reports, I was able to obtain affidavits that outlined other police excesses and brutality. The point was repeatedly made that violence and intrigue directed against blacks was not limited to politically active persons. It is evident that numerous victims were passive and non-controversial.

My presence when affidavits were sworn out by numerous black South Africans shaped my understanding of the intrusive police violence through which the minority Government of South Africa attempts to control and immobilize the black majority population. The affidavits portray a pattern of officially stimulated violence that is strikingly different from the spontaneous violence that erupts in public settings at funerals and urban centres that the newspapers and other organs of our national media choose to report. Again, through conversations and the affidavits, I learned of police violence in South Africa that strikes individuals in their homes and neighbourhoods, both as an incidental side-effect of unchecked police authority and as part of systematic police effort to maintain political control.

These affidavits document the way that disappearances and detentions, combined with unspeakable violence by police directed against township residents who were politically non-involved, reinforce the reign of terror. Two teenagers, whom I met in New Brighton township, displayed ghastly wounds caused by police who had fired on them with semi-automatic weapons. Mothers described their own beatings and the shooting deaths of sons before their very eyes. Wives told me of harassment, disappearances and the mutilation of their husbands; detainees reported on beatings and torture while in police custody.

The individuals who swore out these affidavits are not revolutionaries and they are not political in an organized sense. They are private persons attempting to hold together their homes and their families. These are decent, essentially trusting persons who try to respond to a most uncivilized violence. The affidavits show that this year, unlimited police power has intruded into the working lives, the family lives, and the school lives of black South Africans at all times of the day or night and often without warning. What I saw was a cruel system of life enforced by whips, police dogs, guns, detentions, arson, torture, disappearances and even death.

I was one of a five-person party arrested by the South African police and charged with violating the emergency order by visiting a black township in Fort Beaufort. The brandishing of weapons by a dozen or more riot police was menacing enough, but clearly the most unforgettable event was the police search of the automobile in which we were travelling. They carefully examined the luggage and briefcases of my South African hosts for outlawed documents and literature. Had they possessed any, they would have faced serious charges and long prison terms.

There are new factors at work now in South Africa. For instance, the role being played by teenagers and pre-teenagers creates an irrepressible force for change. Parents who have been quiescent and accommodating have forged a union with the youth. Young people are fearless. Their parents and other adults have rallied to their side. As Rev. A.J. Visagie, a Dutch Reformed minister told me in the Eastern Cape, parents and their children have now “begun to reconcile resistance to apartheid with their Christian faith”. Also, blacks are perfecting the techniques of economic boycotts and they are crippling the economy in many cities. This strategy has been particularly effective in the Port Elizabeth area.

Since my visit, initiatives have been taken by leading South African businessmen to establish dialogue with exiled black leaders. Recently, 91 leading business executives, in an advertisement appearing in South African newspapers, called for the end of apartheid and for prompt negotiations with authentic black leaders. This presents the government prosecutors in the treason case and the law enforcement officials with an anomaly. The 16 defendants are charged with acts basically similar to those engaged in by these businessmen. It is unclear how the Government can go forward with a trial on the indictment under these circumstances.

As I reflect on the mission I undertook, my mind returns repeatedly to the 16 defendants in the South African courtroom. Their acts and deeds consist of nothing more than speaking out against a fundamental evil.

My mind goes back to the courtroom where an earnest and decent judge grappled with the law – within the limited authority the system accords the judiciary – in an effort to do justice and realizing how impossible that is under the laws now in effect in South Africa.

My mind also returns not only to the numerous persons with whom I spoke in the various townships, but also to the 4,591 persons gaoled since 21 July 1985, and to the hundreds of persons killed and wounded. These statistics have come to represent to me much more than cold numbers on a page. With each of these numbers I now see a face and hear a voice. I also see a wife, a husband, a father, a mother, a son, a daughter – and I see tears. In short, I see courageous and determined human beings “yearning to breathe free”.

Until apartheid ends, and legal and political rights exist for each of these persons, they will never breathe free.