Before the African National Congress became the dominant party of government of South Africa in 1994, I published an article in a banned exile journal, Searchlight South Africa, suggesting that the ANC could not be trusted to honour any future Constitution and that it would break and abuse the law. My argument rested on a document published by the ANC, drafted in turn by a commission appointed by the ANC, led in turn by the most eminent jurist then a member of the ANC. It was called "The dilemma of Albie Sachs: ANC Constitutionalism and the death of Thami Zulu."

At that time I did not expect that this article, published in October 1993, in London, would become as relevant as it has now become, ahead of the general election in April. It has never been republished in South Africa, though it became available online for academic purposes last year on the Aluka Archive website.

I returned to the subject of this article two weeks ago on Politicsweb in  "Jacob Zuma, Mbokodo and the death of Thami Zulu" (see here) and in "Jacob Zuma in exile: three unexplored issues" (15 February, see here).

Last week, one of the most reliable investigative reporters during the mayhem years preceding South Africa's first democratic election, David Beresford, then correspondent for the London Guardian, returned also to the same issue in an important article in the Johannesburg Sunday Times. Beresford had published important research on this issue in the Guardian in September 1991.

The subject of these articles was the murder in Lusaka, Zambia, in November 1989 of a leading commander in Umkhonto weSizwe, Thami Zulu (real name, Muziwakhe Ngwenya, known as "TZ"), which took place while Mr Zuma - then a member of the Politburo of the South African Communist Party - was head of counter-intelligence in the ANC security department, its feared Department of Intelligence and Security (DIS). An ANC commission of inquiry, headed by then Advocate Albie Sachs, found in March 1990 that Thami Zulu had in fact been poisoned while in close confinement due to illness, but in a complete breach with the spirit of law the same commission failed - or rather, refused - to inquire who might have killed him. This failure of jurisprudence suggested to me a serious danger for the rule of law in South Africa, under government by the ANC.

South Africa now faces a probable breach of the Constitution, with the likely election as President of Mr Zuma while facing criminal charges relating to corruption. One of Mr Zuma's most zealous speechifiers, the president of the ANC Youth League, Julius Malema, has argued that this trial can be set aside, and the Constitution and the law be overturned, simply by an electoral majority voting for the ANC list in the general election. If this were to take place, it would in my submission be as grave an abuse of law as the report of the Sachs Commission in 1990 represented a scandal of jurisprudence.

Politicsweb has decided to republish my original article in three parts, for ease of reading on the net. A section from the original article which reproduced a lengthy passage from the ANC Code of Conduct has been omitted. References, which came originally at the end of the article, are indicated by numbers in square brackets [ ], and appear in order after each part.

To conclude this introduction, there is a need only for a brief reference to the subsequent lives of a few of the principal figures in the drama before and after the murder of Thami Zulu.

Advocate Albie Sachs was appointed to the Constitutional Court by former President Mandela in 1994. Mr Justice Sachs's former wife, the former political prisoner Stephanie Kemp, last year publicly resigned from the ANC and from the SACP in protest at the behaviour of the supporters of Mr Zuma, and has joined the opposition breakway party, the Congress of the People.

Mr Philemon Ngwenya and Mrs Emily Ngwenya, the parents of Thami Zulu, gave evidence to the Truth and Reconciliation Commission in 1996 of their extensive but futile efforts to identify the killer (or killers) of their son. Mrs Ngwenya made a particular point in her evidence, when she stated: "We have evidence to prove Dr Prem was treating TZ, who was Dr Prem reporting to? Because the head of health says no one reported to him about TZ". In her testimony, Mrs Ngwenya subsequently identified "Dr Prem" as Dr Prem Naicker.

Dr Prem Naicker did not present evidence to the TRC concerning the death of Thami Zulu, and has not publicly clarified to whom he was reporting, as sought by Mrs Ngwenya. Dr Naicker studied medicine in exile in Moscow, and is the son of a leading ANC stalwart from Durban. In 2000 he was reported to have become head of the Military Health Service of the South African National Defence Force as Brigadier General Prem Naicker (see here and here).

In the Sachs Commission report, Dr Naicker is identified as "Dr Pren" Naicker. Two photographs in the MP Naicker Collection of books, documents and memorabilia donated to the University of KwaZulu-Natal (presented initially to the University of Durban-Westville) are identified as being of "MP with son, Pren and a friend in Moscow". MP Naicker (1920-1977) was a veteran trade unionist and Stalinist leader of the SACP (several books by Stalin are in the collection), an accused in the Treason Trial in the Fifties, a co-editor of the SACP newspaper New Age and the first editor in exile in London of the ANC journal, Sechaba.

Jacob Zuma did not present evidence to the TRC concerning the death of Thami Zulu. He is placed number one in the ANC's list of candidates for the coming general election. Jacob Zuma gave an account of his close friendship with MP Naicker and a warm appreciation of the role of the SACP, of which he was himself a member from 1963 to 1990, at the launch of the MP Naicker Collection at the University of Durban-Westville on 7 June 2003.

Retired General Siphiwe Nyanda, the brother of the assassinated Umkhonto commander Zwelakhe Nyanda, became Chief of the South African National Defence Force between 1998 and 2005.  He was detained in South Africa between July and September 1990 as a leading figure in Umkhonto weSizwe in the underground Operation Vula. He stands in position number 28 on the ANC list of candidates for the election, was a leading supporter in the campaign of support for Jacob Zuma at the ANC national conference at Polokwane in December 2007 and was then elected to the party's National Executive Committee.

Zola Skweyiya, the Officer of Justice in the ANC in exile at the time of the murder of Thami Zulu, is placed at number 13 in the ANC's list of candidates for the election.

ANC constitutionalism and the death of
 Thami Zulu *

Part One

A Death in Exile

Three months before the unbanning of the ANC and the release of Nelson Mandela, a senior commander of Umkhonto we Sizwe died in exile at the headquarters base of the ANC in Lusaka, Zambia. He died of the effects of TB, AIDS and very possibly poison. He died suddenly, five days after having been released from detention by the ANC security department, and was under close ANC guard when he collapsed.

Soon afterwards a top-level commission of inquiry of four commissioners - all leading ANC members - was set up by the National Working Committee of the National Executive Committee (NEC), following a great deal of hostile speculation in the ANC about the circumstances and cause of the man's death. The commissioners did not begin their investigation until three months later. This was at the beginning of February 1990 - the same time as the legalisation of the ANC (on 2 February) and the release of Nelson Mandela. The four commissioners signed their report on 16 March 1990, Presumably it was presented to the NEC immediately afterwards. [1]

Through a combination of circumstances, this report from the exile makes possible a more searching inquiry into the credibility of the ANC in its constitutional negotiations. It permits a close evaluation of the gap between words and deeds. Though withheld from the public until August 1993, when it was released with the report of the Motsuenyane Commission into executions and torture in the ANC in exile, this report was effectively a document of the legal ANC . The ANC was by this time a party to the negotiating process. The report could only have been written with the changed circumstances of the ANC strongly in mind.

Among the four commissioners were two senior political and legal advisers to the ANC in its constitutional discussions. Of these, one was among the best-known international personalities representing the ANC in the decades of the exile: Albie Sachs, former Professor of Law at Eduardo Mondlane University in Mozambique, Director of South African Constitution Studies at the Institute for Commonwealth Studies, London, a member of the ANC Constitutional Committee and author of a number of books. We have here an insight into ANC military and security operations during the exile, produced in the spirit of its open, public constitutional proposals.

The tension between these opposite dimensions provides a means of testing the ability of the ANC to confront its past, and of deciphering the phraseology of its constitutional proposals. The reader is engaged not so much in uncovering a history, as deconstructing current discourse. An inquiry into the ANC's past, the report is still more an index to its semantic integrity at present, and its means of operating in the future. It permits a critical judgement on the texts, spoken and unspoken, of ANC negotiators in their conclaves at the head of state, as well as on its security practices in exile.

The dead man was Muziwakhe Ngwenya, who grew up in Soweto and was then in his mid-thirties. He is better known by his pseudonym or exile ‘travelling name' of Thami Zulu, or TZ. Throughout the report he is referred to as TZ. I will refer to him as Zulu, or Thami Zulu. The commission's report will be referred to either as the Thami Zulu report or as the Sachs report, since Sachs chaired the inquiry. [2] Like certain other essential details, Zulu's date of birth and age at death are not recorded in the report. Nor are the precise date and and time of his death, a bizarre omission from an inquiry of this kind. Eighteen months after presentation of the commission report, an article in the Johannesburg Weekly Mail by Phillip van Niekerk gave his year of birth as 1954. An article on the same day in the London Guardian by its South African correspondent, David Beresford - clearly coordinated with the article in the Weekly Mail, and carrying similar but not identical material - gave his date of death as 16 November 1989. [3] No ordinary police inquiry would have omitted such details.

The death of Zulu resulted in so much dissatisfaction within the ANC that it could not be hushed up. This was a major, but not the sole, reason for the relatively extensive inquiry by the ANC that followed. The report leads into the labyrinthine world of secret military operations, counter-operations and counter-counter operations in the contest between the ANC and the South African state during the 1980s, a world familiar - in another continent - from the fiction of John le Carré.

Zulu came from ‘a well-educated and relatively comfortable home in Soweto'. (p 8) His mother, Mrs Emily Ngwenya, was a primary school head teacher. (Sunday Times, London, 4 March 1990) His father was also a head teacher. They were sufficiently well-off to send him for most of his secondary level education to Waterford, a fee-paying boarding school in Swaziland modelled on the English public school system. He thus escaped the worst effects of Bantu Education in South Africa. In the words of the report, his life experience as a youth was ‘different from that of most of the persons' in Umkhonto. His immediate family are members of the developing black middle class in South Africa, which has most to benefit from the current political changes. Following his death in Lusaka, these were not people to be kept quiet with sinister allegations or threats, or who had only limited access to the means of public discussion.

Zulu was a person of stature in the exile. A witness to the inquiry stated that Zulu was ‘always used to being in command and never to being commanded'. He gave himself ‘the airs of a Napoleon'. After abandoning his studies at the University of Botswana to join Umkhonto in 1975, he was appointed leader of a batch of young exiles who left Swaziland for Tanzania for military training. Two years later he led the ‘first group of the Soweto generation to receive military training abroad [in East Germany]. Further training followed in the Soviet Union. He then became chief of staff at Nova Katenga military training camp in Angola, where he was distinguished by his brutality, coldness and cruelty towards the troops. (personal communication) Torture of Umkhonto soldiers in Camalundi camp in Malanje province and the death under torture of Oupa Moloi, head of the political department, took place in 1981 under his authority as camp commander. Zulu brazenly threatened others in the camp with the same treatment. [4] This was followed by his appointment to the post of Regional Commander, covering the whole of Angola, the only country where the ANC was then engaged in any substantial combat. As such, he held senior responsibility for the deployment of ANC troops in the civil war alongside government MPLA forces against the rebel army of Unita, with its infrastructure provided by South Africa.

Zulu was finally appointed commander of what was known as the ‘Natal Machinery'. This was a grouping, based in Swaziland, responsible for what the report describes as the secret ‘irrigation' of armed combatants into Natal and their military activity inside that area. (p 7) He was a crucial frontline commander responsible for conducting guerrilla and sabotage operations within South Africa. After his death, Joe Modise and Chris Hani (commander and chief of staff of Umkhonto) wrote a tribute which stated: ‘Under your command, Durban earned the title of the most bombed city in South Africa... You performed your task with distinction and remarkable courage'. Saluting this ‘giant and gallant fighter', they recalled his ‘efficiency and competence.'[5]

Fear and Loathing in Lusaka

Zulu held this post from 1983 until 1988, when he and virtually the whole of the Natal Machinery were withdrawn to Lusaka for investigation by the security department, following severe losses to the South African state. Shortly before his arrest, nine ANC guerrillas under his command, including three women, were murdered in cold blood, at point-blank range, by a South African hit squad in two separate ambushes as they crossed from Swaziland into South Africa. One of Zulu's deputy commanders - known as Comrade Cyril, or Fear (real name Ralph Mgcina) - had been detained earlier by the ANC security department in Lusaka and interrogated. A summary of a confession by Mgcina, allegedly made at the end of May 1988, a month before the slaughter on the Swaziland border and Zulu's subsequent arrest, is attached to the Sachs report.

According to this document, Mgcina stated that he had worked for the South African Special Branch since 1973, had joined Umkhonto and been deployed as a ‘leading cadre in one of our military machineries' in Swaziland. From this position, he had set up the assassination by a South African hit squad of Zulu's predecessor as commander, Zwelakhe Nyanda, in 1983. The summary by ANC security of his alleged confession, dated 3 August 1988, states that the strategic goal of SA intelligence was to allow infiltrated structures in Swaziland to grow

and then cut them down, but leave an embryo for the ANC to build on and within that embryo leave its own forces so that the new structure is also controlled. This would go on indefinitely.

Mgcina subsequently died mysteriously in the custody of his ANC captors. Beresford states he had ‘refused to sign a confession that he was a South African agent'. His wife, ‘Jessica', was also detained and questioned. The Sachs report states that during the investigation in Lusaka, ‘two leading members of the Machinery admitted to having worked with the enemy'. The question was whether Zulu was a ‘third person' also working for South African security. (p 8)

In their account of the ANC in exile, Ellis and Sechaba state that Zulu was a member of the South African Communist Party (SACP), and was present at the extended meeting of the central committee in East Berlin in 1979 which elected Moses Mabhida to the post of general secretary. [6] He came close to joining the Umkhonto High Command, with ‘strong backing' from Chris Hani, then Umkhonto commissar. (p 170) At the ANC consultative conference at Kabwe in Zambia in 1985 - its first for 16 years - he chaired ‘some crucial sessions' of the Internal Reconstruction Committee. Zulu was clearly an important figure in the ANC, destined for high office, until his recall to Zambia. He was then held prisoner in Lusaka by the ANC security department for 17 months, from June 1988 until his release on 11 November 1989. Curiously, the Sachs Commission, which had access to his interrogators, state he was in detention for 14, not 17, months.

The commissioners are listed in the report as follows:

Z.N. JOBODWANA. Convenor and presently member of the Dept of Legal and Constitutional Affairs; formerly an attorney in South Africa.

ISAAC MAKOPO. First Chief Representative of the ANC to Botswana, 1978-83; formerly chairperson to the Regional Political Committee, Lusaka; presently Head of the National Logistics Committee in the Teasury Department of the ANC.

TIM MASEKO. Worked as a Research Chemist in Swaziland; formerly principal and Chief Administrator of Solomon Mahlangu Freedom College, Morogoro, Tanzania.

ALBIE SACHS. Formerly an advocate and Law Professor in South Africa; currently Director of the South African Constitution Study Centre at the Institute of Commonwealth Studies in London.

The commission has special interest because of the legal background of Jobodwana and Sachs. In addition to them, the ANC in its negotiating strategy now has the benefit of a whole corps of constitutionalists. These include Kader Asmal, professor of Human Rights Law at the University of the Western Cape, and like Sachs a stalwart of the exile. Asmal spent most of the period of exile as a lecturer in law and as a senior administrator at Trinity College, Dublin, and was a central figure in the Anti-Apartheid Movement in Ireland. Among his recent publications is an article entitled ‘Democracy and Human Rights: Developing a South African Human Rights Culture', to which is appended the first draft of the ANC's Bill of Rights of November 1990. [7] At a conference on Ethnicity, Identity and Nationalism in South Africa held at Rhodes University, Grahamstown, in April this year, Asmal presented a paper on the current constitutional negotiations, reprinted in a long extract in the Southern African Review of Books. [8] The stress on human rights in the ANC constitutional proposals is obviously very important. The manner in which the ANC has actually approached the matter of human rights, in practice as well as theory, may be seen from the case of Thami Zulu.

To read the second part in this series click here.

REFERENCES

* First published in Searchlight South Africa No.11, London, October 1993.

1. ‘Report of a Commission of Inquiry set up in November 1989 by the National Working Committee of the National Executive Committee of the African National Congress to Investigate the Circumstances leading to the Death of Mzwakhe Ngwenya (also known as Thami Zulu or TZ)', Lusaka, March 1990.

2. Reported by Phillip van Niekerk, ‘Who killed Thami Zulu?', Weekly Mail, 6 September 1991. Van Niekerk refers to the commission's findings as the ‘Sachs report'.

3. David Beresford, ‘Poison in the ANC's ranks', Guardian, London, 6 September 1991. I take the spelling of Muziwakhe (‘his house', or family, in Zulu) from the articles by Van Niekerk and Beresford, who had access to Ngwenya's parents. Both journalists are highly respected. Van Niekerk was visited in hospital by Nelson Mandela after being shot in the head by gangsters following the massacre at Boipatong.

4. Bandile Ketelo et al, ‘A Miscarriage of Democracy, The ANC Security Department in the 1984 Mutiny in Umkhonto we Sizwe', Searchlight South Africa No. 5, July 1990. pp 40-41.

5. Text and attribution from Sunday Times, Weekly Mail and Guardian.

6. Stephen Ellis and Tsepo Sechaba, Comrades Against Apartheid. The ANC and the South African Communist Party In Exile, James Currey/Indiana University Press, 1992.

7. Kader Asmal, ‘Democracy and Human Rights: Developing a South African Human Rights Culture', New England Law Review, 27 (1992), pp 287-304.

8. Kader Asmal, ‘Making the Constitution', Southern African Review of Books, Vol 5 No 3, May/June 1993.