The Final Days

Zulu had entered detention, in the words of the report, as a ‘large, well-built slightly overweight person, and come out gaunt, frail and almost unrecognisable'. (p 10) On his release on 11 November, he was taken to stay at the house of a friend, Dr Ralph Ngijima. He told Ngijima that his condition had deteriorated drastically while he was in an isolation cell, lying all day on a mattress on the floor. In previous years Zulu had suffered from TB. Having developed diarrhoea, mouth sores (thrush) and a spiking fever towards the end of his time in detention, he was taken in charge of Dr Naicker to University Training Hospital (UTH) in Lusaka for X-rays on 1 November. Nothing was detected on the X-rays, but a blood test taken at the same time showed he was HIV positive. The Presidential Committee (Tambo's office) then ordered his release. Ngijima considered Zulu's condition on at arrival at his house to be shocking but not suggestive of imminent death. The following day Ngijima fell seriously ill himself and had to be taken to hospital for an emergency operation.

Zulu died of heart and lung failure four days later on 16 November, while Ngijima was still in hospital. The histopathological analysis after his death showed advanced TB in various organs, including the sac around the heart. Medical opinion in Lusaka, London (where specimens of blood and stomach contents were taken for analysis) and South Africa enabled the commission to decide that he was a victim of AIDS which had destroyed the immune system, permitting rapid advance of TB.

The problem for the commissioners was that samples of Zulu's blood and stomach contents sent for analysis at UTH in Lusaka showed traces of diazinon, an organic phosphorus pesticide, in both specimens. [19] The blood also contained 84 milligrammes percent alcohol, the equivalent of about three pints of beer. A forensic scientist in London who was given the same specimens for analysis three months later said that diazinon has a strong and unpleasant taste. It does not dissolve in water or tea, but is soluble in alcohol. ‘Three pints of beer taken within a twenty-four hour period and each containing a teaspoonful of diazinon could have been fatal'. (p13) Diazinon is not however accumulated in the body; it is excreted out. ‘Thus if it had been given to TZ it would necessarily have been given within a day or at most two days prior to his death'. The commissioners state that while they cannot express any certainty as to whether Zulu had been poisoned, they felt ‘the likelihood is that he indeed was'. (p 14)

At this point the investigation breaks down. There could not be a greater contrast between the scrupulous manner in which medical forensic detail has been accumulated and assessed, and the absence of forensic investigation subsequent to these findings. If diazinon could only have been administered to Zulu within one or at most two days before his death, then the identity of his murderers had to be established through a careful trawl of all people who had access to him over that time, and who might have provided him with poisoned beer. There is no indication in the report that any such inquiry was made. No information is provided about who visited Ngijima's house during that time. The investigation disappears into a hole. The commissioners state: ‘If TZ was poisoned, then we cannot see that anyone other than South African security could have been responsible'. (p 14) The obvious point is avoided: if poison was administered to Zulu in three bottles of beer, those who supplied it were almost certainly members of the ANC, and perhaps very senior members.

This point is simply not canvassed. There no attempt to compile a list of people who had seen Zulu in the two days before his death. The commission further suppressed information which appeared later in the South African and British press. The identity of one individual who did see Zulu during those two days is known. It is Chris Hani, then Umkhonto chief of staff.

After his return to South Africa, Hani seems to have given details of his own account of the lead-up to Zulu's death to Van Niekerk of the Weekly Mail and (in the same briefing) to Beresford of the Guardian. This appears to have been the immediate stimulus for their coordinated stories in Britain and South Africa on 6 September 1991. Following Hani's murder in April 1993, there is an onus on Van Niekerk and Beresford to make plain exactly what their relation to Hani was in compiling their accounts.

The countdown to Zulu's death appears to be as follows:

Saturday 11 November:

Zulu released from detention and brought, very ill, by the security department to Ngijima's house.

Sunday 12 November:

Ngijima taken ill and rushed to hospital for emergency operation.

Monday 13 November:

Ngijima phones Hani from hospital and tells him to check up on Zulu. Hani and Modise, the two senior commanders in Umkhonto, go to to the house, find the gate locked and ‘vault over a high fence to get to TZ', whom they find in a very sick state. ‘After that two MK men were sent to look after him'. (Van Niekerk) These were men loyal to Hani. (personal communication) They are so far unidentified, and there is no way of knowing whether or not they were interviewed by the Sachs Commission. This is obviously crucial for any serious inquiry into possible murder by poisoning. Failure to establish the precise role of these two men vitiates any judicial inquiry.

Tuesday 14 November:

Hani returns to the house and finds Zulu still in a bad state. Zulu does not want medical help but ‘appeared to be worried that the Security Department is going to "finish me off" if he got into their hands'. (Beresford) This is clearly Hani's own account, and points a finger directly at the security department, then headed by Joe Nhlanhla (director), Jacob Zuma (head of counter-intelligence) and Sizakele Sigxashe. (Skweyiya report, p 63, and Beresford) Both Van Niekerk's and Beresford's accounts suggest Hani pointing an accusatory finger at Zurna, now assistant general-secretary of the ANC and one of the five-man team originally charged with conducting negotiations with the government.

Wednesday 15 November:

Hani calls in a doctor to attend to Zulu in the night ‘and left two MK members to keep watch at his bedside'. (Beresford) Zulu suffers attacks of vomiting and diarrhoea.

Thursday 16 November:

Zulu starts gasping and is rushed to UTH, where he dies.

The Sachs Commission refers to ‘lack of cooperation between Military HQ [i.e., Modise, Hani] and security [i.e., Nhlanhla, Zuma, Sigxashe]' on the issue of Zulu's detention and death. (p 19) This is a bland understatement. Beresford writes that under the ANC's command structure, the security department was responsible for detentions, was completely separate from the military command and had overriding investigatory powers.

Thami's detention, which came as a shock to the military, was without the sanction of either Modise or Hani. The two commanders made furious demands inside the ANC National Executive to know the basis of Thami's detention and to have access to him. Both were refused.

Beresford writes that unless Zulu conmitted suicide, ‘the finger of suspicion points to those in attendance on him in the final hours of his life ... which includes members of Umkhonto we Size itself'. He speaks of ‘bitter, if unspoken antagonism' on the part of the military towards the security department. If South African intelligence had infiltrated an agent into the upper echelons of the ANC who was responsible for Zulu's murder, ‘the potential for manipulation is obvious'.

Van Niekerk quotes an unnamed commander (probably Hani):

TZ's detention was not discussed with us... Our response was one of bitterness and led to a straining of relations between the army and security. Security was very powerful - it had the powers of life and death. The death of TZ is an indictment of the methods we used against suspects, ignoring his track record and the views of those who worked with him closely.

The central issue for this article, however, is not the matter of determining the exact details in the last years and days of Thami Zulu, or even inadequacies in the investigation by the Sachs Commission. Many of these difficulties are probably irreducible, given the nature of a secret war.

What is at issue is Sachs' publication of a major book on perspectives for human rights in South Africa that makes no reference to human fights abuses in the ANC in exile - problems which he was very aware of at the time, at first hand. Even if he wished to explain the context in which these abuses took place in terms of his own understanding of the issue, this is not a matter that is irrelevant to the subject of his book. It is its most difficult and complex dimension. For a legal figure of his stature not to have mentioned the matter is to deceive his readers. He creates further difficulties for the already dreadfully burdened issue of human rights in South Africa. Kader Asmal's ringing declaration about ‘no hidden agendas' is untrustworthy, and this book shows it. Sachs' sophistication, his legal training (both academic and practical), his fluent writing style and his familiarity with the legal system, the universities and the media in major western countries, together with his appealing personality, serve to mask the most sensitive problems for human rights investigation in South Africa, rather than clarify them. [20] The distinction between Sachs' role in protecting human rights inside the ANC and in concealing its abuses is difficult to make. His work is part of the problem, not its solution.

The Pursuit of Justice

There is no need to give extensive extracts from Sachs' book, Protecting Human Rights in a New South Africa. A great deal of it is sound and needs no further comment. Other parts give proposals for adaptation of the ANC programme to the hard realities of South Africa's capitalist structure. These are not matters that I am concerned with here. What is at issue is a rosy liberal prose that obscures what it should illuminate. A few references will be sufficient.

Sachs claims, for instance, that the

frequent and massive human rights violations in our country, together with a vigorous movement of contestation and considerable international attention, have produced on our part [i.e. the ANC] unusual sensitivity to and a passionate interest in the safeguarding of human rights. (p 40)

Would it were true!

For those of us who have suffered arbitrary detention, torture and solitary confinement.., the theme of human rights is central to our existence. The last thing any of us desires to see is a new form of arbitrary and dictatorial rule replacing the old. (ibid)

And yet...

In a chapter on ‘The future of South African law', he writes of the ‘legal freedom fighters in our past' - Gandhi, Schreiner, Krause, Seine, Mathews, Fischer, Nokwe, Berrange, Kahn, Muller, Mandela, Tambo, Slovo and Kies - people who saw their legal careers as being ‘inextricably linked up with the pursuit of justice'. (p 98) No reference to the problematic relation of at least three of these to the ANC's system of prison camps in exile. No reference either to the fact that a number of these jurists for decades justified the tyranny of the Soviet Union, the model for Quatro and its clones. He writes of the qualities of professional legal integrity, including that of ‘never consciously misleading the court'. (p 99) But to mislead a whole population....

One could go on, but this is enough. If the ANC gets its way in its constitutional embrace with the National Party, or even part of its way, Sachs is likely to have an important place in the judicial system of the ‘new' South Africa, perhaps even a place in the cabinet. In relating to Sachs, one is relating to the ANC at its most spell-binding. The matter of this article is the future of the legal system in South Africa, perhaps for decades to come.

Like those notables in the west who sang the praises of the Stalin Constitution of 1936, Sachs is victim of a romantic fallacy: of asserting a desired ideal, clothed here as a legal norm, as if were a factual truth. [21] His inspiring prose soars overhead and discredits the human rights objectives to which he earnestly and genuinely aspires. The ANC publicist is internally at war with the jurist, and the publicist frequently wins out. One sees the personal moral anguish of the activist reared in the old-style certainties of the SACP (he first visited the Soviet Union in 1954, the year after Stalin died), in conflict with the yearnings of a decent man. Thus the tears to which he gave acknowledgement at UCT. Between the ‘comrade' and the activist for human rights, an internal conflict sparkles like static electricity.

Several things need obviously be done. Sachs should write an honest, straightforward account of his own efforts (and those of others) within the ANC to secure better observation of human rights. As a member of the NEC, he should insist that the minutes of the Kabwe conference be published. As he writes in his book on human rights, ‘it ill behoves us to set ourselves up as the new censors...' (p 183) He should act on these words.

Finally, it is a scandal that the ANC should have refused to carry out the recommendations of the Motsuenyane Commission - above all, that torturers and killers should be removed from office in the ANC, and that compensation should be paid to victims - until such time as the National Party takes action against the state's own killers and torturers. The decision by the NEC to defer action on its own abuses until the convening of yet another commission, a so-called ‘Commission of Truth', is an act of hypocrisy at the highest level of the ANC. [22] By this decision the ANC shakes hands with the NP in a pact of blood. As a member of the ANC, Sachs must take responsibility for this deeply cynical measure.

The ‘conscience of the ANC' is looking worn.

To go back to part 1 click here; and to part 2 click here.

REFERENCES

19. I mistakenly spelt this ‘Diazonin' in my article in SSA No. 10 (p 30, n 6).

20. Having obtained his PhD at the University of Sussex after arriving in Britain, Sachs became senior lecturer in law at the University of Southampton. He received an honorary award of LLD from the university. Following his work as professor of law at Eduardo Mondlane University in Maputo, Mozambique (1977-83), he became director of research in the Mozambique Ministry of Justice. After the car bomb attempt on his life, he taught at Columbia University in New York as well as directing the South Africa Constitution Studies Centre at the Institute of Commonwealth Studies in the University of London. Since returning to South Africa, he has been attached to the University of the Western Cape and the University of Cape Town.

21. For a typology of the species, see David Caute, The Fellow-Travellers, Weidenfeld and Nicolson, 1973.

22. ‘ANC torturers are granted a reprieve by Mandela', Daily Telegraph, 31 August 1993.

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