Human Rights, For Some

The ANC produced its Constitutional Guidelines in 1988 while numerous members remained imprisoned, without trial, in its prisons and detention camps in several African countries. Its Bill of Rights of November 1990 was drafted and published while a smaller but still substantial number - including some later described as ‘genuine comrades' by Nelson Mandela - remained prisoners in an ANC prison at Mbarara in southern Uganda, prior to their release in August 1991.

In his paper at Grahamstown, Asmal quoted the declaration by the ANC that its Bill of Rights would guarantee a society upholding

fundamental rights and freedoms for all on an equal basis, where our people live in an open and tolerant society, where the organs of government are representative, competent and fair in their functioning, and where opportunities are progressively and rapidly expanded to ensure that all may live under conditions of dignity and equality.

What is at issue is his comment, reprinted in the SARB, that there are ‘no hidden agendas' in such claims. This is the importance of the position of Albie Sachs in the Thami Zulu Commission. From comparison with his published writings, a major part of the report, if not all, appears to have been written by Sachs, He currently holds senior political office in the ANC, after election to the NEC at the ANC's national conference in Durban in July 1991.

On 9 May 1990, days after returning from exile after leaving the country 24 years previously, and after a near-fatal attempt on his life by South African Military Intelligence in 1988, Sachs admitted to a mass meeting of students at the University of Cape Town that the ANC was still holding prisoners. He said he had been moved to tears by a recent visit to a detention camp, and admitted that the ANC had ‘mistreated' prisoners in the past.

If people come back and say they have been mistreated by the ANC, it is not necessarily lies. But if people come back and say that is the ANC [policy], that is lies. (Times, London, 11 May 1990)

The previous month, five former ANC guerrillas (Bandile Ketelo and his colleagues) told the world press about torture, murder and imprisonment for dissent in its prison camps in exile. A week later Nelson Mandela conceded that torture had indeed taken place in exile (but erroneously claimed that those responsible had immediately been punished). From the Thami Zulu report, it now becomes possible to evaluate the relation of Sachs, as a leading constitutionalist in the ANC, to the issue of its human rights abuses.

Several months after his return from exile and his speech at UCT, Sachs published a book in Cape Town entitled Protecting Human Rights in a New South Africa. The preface is dated ‘London and Cape Town, August 1990' (i.e. four months after the revelations by the former ANC detainees, and three months after Sachs' speech at UCT). [9] It contains not a word about the ANC's prison camps or its human rights abuses. Nor is there any reference to this in Sachs, autobiographical account, The Soft Vengeance of a Freedom Fighter, published in Britain, also in 1990. [10]

The book on human rights presents important, though unofficial, guidelines on ANC perspectives for human rights in South Africa. It appears to be an expanded version of an address presented earlier by Sachs at the London School of Economics, at an occasion named in honour of the British stalinist lawyer, the late D. N. Pritt.

During the heyday of the ANC prison camps, from 1978 to 1988, a chasm opened up between the declared aims and beliefs of the ANC and its actual practices, a history of semantic distortion bearing on the crisis of violence within South Africa over the past few years. Put simply, the ANC's manner of dealing with internal dissent during the exile does not breed confidence among its political rivals and opponents - among blacks as well as whites when they look to their future.

The story of a single individual makes the point. In their history of repressions within the ANC published in Searchlight South Africa No. 5 (July 1990), Ketelo and his colleagues recalled the experiences of three ANC colleagues whom they describe as the ‘very first occupants of Quatro prison'. [11] The ‘travelling names' of these three exiled members of Umkhonto we Sizwe were given as Ernest Khumalo, Solly Ngungunyana and Drake. After increasing dissatisfaction among troops in Fazenda training camp in Angola in 1978, these three are said to have left the camp in 1979 to go to the capital, Luanda, to demand their resignation from the ANC. In Luanda they were beaten in the street by ANC and Angolan security officers, bundled into a truck and taken straight to Quatro.

According to Ketelo, Ngungunyana was released after two years, Khumalo in 1984 while the fate of Drake was described as still unknown. These men endured the worst period in Quatro. Khumalo had the appalling experience of being released from the prison in 1983, only to be re-arrested and returned to Quatro the same day. He served about five years. There was no trial, no charge, and no means by which the prisoners could defend themselves. They were subject to constant brutality. The sharpest edge to this history of arbitrary practice, however, is this: ‘Ernest Khumalo' was the exile pseudonym of a half-brother of the king of the Zulus, King Goodwill Zwelithini, the titular head of the KwaZulu Bantustan and patron of the Zulu nationalist party, Inkatha. Khumalo's real name is Immanuel Zulu. He completed a course of study in Liverpool in Britain over a year ago and has resisted efforts by his close relative, Chief Mangosuthu Buthelezi, the head of Inkatha, to return to South Africa to deploy his experience in exile to discredit the ANC. [12] (personal communication)

Perceptions in KwaZulu

Through the unbridled arrogance of its security department, the ANC sent a message to Inkatha leaders over ten years ago in this single episode that may well have helped inflame near-civil war within the country, at the cost of thousands of deaths. The KwaZulu Bantustan, like all such regions within South Africa's borders, was and is a one-party state run under a blatant ideology of ethnic chauvinism, with shameless patronage to the advantage of the ruling political elite. Nothing could have been better calculated to breed distrust among Buthelezi and Zwelithini in the constitutional character of the ANC than its treatment of their relative, Immanuel Zulu. For these men, the liberal phrases of the ANC as pronounced by Asmal, Sachs and others ring hollow. The horrors of the past six years involving countless murders by members and supporters of Inkatha may well have happened anyway. There are deep social and political causes. But no amount of killings by Inkatha members and the KwaZulu police, sanctioned and endorsed by Buthelezi and Zwelithini, should be permitted to obscure the crucial point. If this was how the ANC treated their relative, a loyal member of the ANC who rejected the Bantustan philosophy, what hope could there be for KwaZulu leaders in a centralised state ruled by the ANC?

Their response was to develop and trust in their own armed might, rather than the possibility of an effective civil polity in which the ANC would form the majority party. In the light of ingrained suspicion of ANC motives deriving from its treatment of its own members in exile, the adequacy of its at tempt to address the death of Thami Zulu (Muziwakhe Ngwenya) has more than an emblematic significance.

Sachs, who was among the best-known ANC legal figures during the exile, is unusual for the manner in which he has attempted to relate to the issue of ‘the camps'. It is unlikely that any of the ANC constitutionalists knows more than he does about the operations of the security department. To some extent, Sachs was the liberal and juridical ‘conscience' of the ANC in exile. The manner in which he used his knowledge is therefore a crucial measure of the organisation as a whole.

The Sachs report quotes an ANC doctor in exile, Dr Prem Naicker, ‘the main person in charge' of Thami Zulu's medical needs while in ANC custody from the time he manifested symptoms of ill-health until his death. According to Naicker, conditions for ANC detainees in Zambia were in a ‘truly parlous state' before the appointment of the new head of ANC security, Joe Nhlanhla, in 1987. No details are given. Conditions, ‘poor as they were, had improved immeasurably' compared with the previous period (under Mzwandile Piliso). Some months earlier Naicker had had to raise with Nhlanhla the ‘appearance of bruises on the arms and wrists of certain of the detainees'. (pp 12, 15) That is all that appears in the 22-page report referring to actual instances of human rights abuses in ANC custody - a matter now richly documented in the report of the ANC commission headed by Advocate Thembile Louis Skweyiya SC (August 1992), the report by Amnesty Intenational (December 1992), the report of Advocate Robert Douglas SC (January 1993), the article by Ketelo and his colleagues (July 1990) and in the report of the second ANC commission of inquiry into its human rights abuses, headed by Mr Sam Motsuenyane, which reported in August.

The Sachs Commission presents a convincing account that Zulu was not tortured during his detention. But the context in which it investigated the possibility of torture was deficient. As a former advocate in the South African Supreme Court, it should have been obvious to Sachs and his fellow commissioners that the question of whether or not Zulu had been tortured could not adequately be investigated unless they were able to establish whether or not torture had previously been widely practised in the ANC.  [13]

This they did not do. Instead of carefully establishing a general context, against which the specific experience of Zulu might be more precisely located, the commissioners filled pages of the report with abstract principles. These are worth quoting, because of the problematic relation of words to deeds in the ANC.

Section 3 of the Thami Zulu report quotes from the ANC Code of Conduct, with a summary and commentary by the commissioners. There is no indication here that ‘mistreatment' - Sachs' phrase at UCT - was in fact widely practised by the security department, as this journal has recorded. [14] The character and limits of ‘intensive' interrogation are also not defined, either in passages quoted from the Code of Conduct or elsewhere in the Sachs report.

The Sachs Commission and the Kabwe Conference

The report goes on to state that the Code of Conduct was adopted at the Kabwe conference in 1985, ‘precisely to deal with the question of human rights within the organisation'. It states:

The delegates at the Conference firmly rejected any notion that any means whatsoever, however cruel, could be used in defending the physical integrity of the organisation, or that members surrendered their basic human rights once they joined the ANC. Similarly, delegate after delegate stressed that the viciousness of apartheid in no way justified viciousness on our part. (p 4)

The problem of ANC constitutionalism is wrapped up, a riddle inside an enigma, in this passage. Whatever was said at the Kabwe conference - and it is the responsibility of the ANC to produce full and complete minutes - this event marked the lowest point in the history of its deliberative proceedings. This magazine has published an account of the packing of the Kabwe conference by the security department, the suppression of meaningful debate and the silencing of critical opinion that took place there. [15] By the time it was convened in June 1985, those ANC members who had most insistently called for a conference ove the previous five years had been silenced by the firing squad or were subject to constant brutality in prison. They remained prisoners at Quatro for a further three years after it concluded.

The conference was the direct result of the ANC mutiny the previous year, which demanded an end to human rights abuses in the organisation. In all probability drawn up with major assistance from Sachs himself, the Code of Conduct was mainly a fig-leaf covering a brutal practice of suppression of dissent. The report of the Stuart Commission into causes and nature of the mutiny was not tabled at Kabwe. Up to the time of writing, it has still not been made public. The Skweyiya Commission found that it had apparently not even been placed before the NEC by August 1992, when it reported its own findings. [16] This was 18 months after the unbanning of the ANC, and a full year after the national consultative conference in Durban in July 1991. [17] Vital knowledge about the history of the ANC remained restricted knowledge, excluded from elected members of its highest constitutional body. The presentation of the Kabwe conference as a forum for defending human rights by the Sachs Commission is not credible.

A Personal Statement

Sachs is a humane man, who genuinely desires an impartial and non-vengeful system of justice. That is why he wishes for ‘soft' vengeance for the bomb that maimed him. In his account of the bombing and its aftermath, he describes his feelings after hearing that Mozambican and ANC security had arrested a man who had allegedly confessed to planting the bomb in his car. The man was described as a black Angolan working for South African Special Forces (a sub-department of Military Intelligence). In a radio interview, Sachs said that his most fervent wish was that the alleged assassin should be ]

tried by due process of law in the ordinary civil courts, and if the evidence was not strong enough for a conviction, he be acquitted. The risk of an acquittal was fundamental, since the creation of a strong system of justice in Mozambique, one in which the people had confidence, which operated according to internationally accepted principles, would validate all our years of effort... (p 199)

This was an honourable standpoint, offering guidance for the future of judicial conditions in southern Africa, all the more stirring because in rejecting the norm of an eye for an eye (‘hard' vengeance), Sachs as political exile, as jurist and as victim was making a statement of his deepest convictions. Due process, he said, would be a ‘personal triumph over the bomber, the ultimate in my soft, sweet vengeance'.

The problem lies in Sachs' blurred perception of what he calls ‘our values'. It would be mean-spirited, insulting and wrong to doubt his sincerity over the need for due process for the man believed to have maimed him. There is no doubting also his desire to eliminate torture, imprisonment without trial and executions by his colleagues in the security department and the military. He genuinely feels anguish at the malpractices of his own side, ‘all our years of effort', to which he gave half a lifetime in exile, and an arm and an eye. But the constraints upon him - political constraints, both external and personal - are too heavy, and they wear away judicial principle.

This appears in the Sachs report when it refers to the creation of the post of Officer of Justice under Section B of the ANC Code of Conduct, acting under overall supervision of the NEC and in collaboration with the President's Office. [18] The function of Officer of Justice was to:

1. maintain the principles of legality within the organisation;

2. supervise investigations when they reach the stage that charges are being contemplated against members; ...

3. ensure that no person in the custody of or under investigation of officers of the organisation is treated in a cruel, inhuman or degrading way;

4. make regular inspections of the way persons deprived of their liberty are treated, with a view to ensuring that the purposes of re education rather than vengeance are fulfilled; ...

5. see to it that no undue delay takes place between completion of investigations and the date of trial; ...

6. take all steps to minimise the period of waiting... (p 5)

Excerpts from the Code of Conduct were published last year by the Skweyiya Commission in its report, including several of the clauses set out here. (pp 16-24) A matter nowhere taken up in the Sachs report, or referred to anywhere in Sachs' books, but published in the Skweyiya report, is the clause in the Code of Conduct dealing with ‘exceptionally serious cases'. This states that that ‘where no other penalty would be appropriate, maximum punishment may be imposed'. The Skweyiya Commission concludes: ‘By maximum punishment, is envisaged the sentence of death'. (p 18)

This crucial passage is omitted in the Sachs report, despite its relevance. It is the legal formulation of death penalty by the ANC: no small matter for a country regarded as the hanging capital of the world, where violent death is everyday. The Sachs report quotes instead a passage from the Code of Conduct stipulating that the ‘rights and privileges' of prisoners should be based on the ‘humanist traditions of the ANC'. (p 5) Once again liberal legal phraseology obscures a thorny truth. The Code of Conduct and creation of the post of Officer of Justice were clearly the result of strenuous efforts by individuals such as Sachs. There is no cause to doubt their sincerity in wishing to establish legality in the ANC, so as to rein in the abuses that had provoked the mutiny, with its further cycle of executions, torture and large-scale imprisonment of loyal members. In its lengthy citation of legal norms, however, the Sachs report conceals the fact that the post of Officer of Justice was an almost total dead letter. Two years after the Sachs report, the Officer of Justice, Zola Skweyiya, told the inquiry chaired by his brother Thembile Skweyiya that his efforts to visit Angola in 1986 and 1987 had been ‘blocked at every turn' by the then head of the security department, Piliso, and that he himself had been in danger of being arrested. He had been allowed to visit Angola late in 1988, but was denied access to Quatro. Efforts to visit Uganda were also blocked. (pp 63-64) Severe abuses continued unchecked, well on into 1991.

From the Sachs report it is clear that Zola Skweyiya did not at any stage visit the detention centres where Thami Zulu was held. The commission is critical that the Code had ‘not been fully implemented'. It was most unsatisfactory, the report goes on, that no clear time-limit had been placed on detention without trial. (p 6) The period over which which Zulu was held as a suspect was far too long. It finds no evidence to suggest that Zulu had otherwise been improperly treated, and no information has emerged to suggest otherwise. The investigation had been carried out in a ‘serious and professional manner'. (p 19) The commissioners conclude that there was sufficient evidence to justify Zulu's detention; that there was no proof that he had in fact been a state agent; but that he had been guilty of ‘gross negligence' and possibly also personal misbehaviour. (p 18) I am not aware of any cause to doubt these conclusions. The commission appears to have operated on these matters in a judicial fashion.

To read the third and final installment click here. To read the previous installment click here.

REFERENCES

9. Albie Sachs, Protecting Human Rights In a New South Africa, Oxford University Press, Cape Town, 1990.

10. Albie Sachs, The Soft Vengeance of a Freedom Fighter, Grafton, London, 1990. This is a remarkable and moving book, one of the best of a large number of autobiographical accounts by leading individuals in the ‘liberation struggle'. Its strength derives from Sachs' emotionally honest description of the experience of being very nearly murdered by a car bomb in Maputo in April 1988, placed by South African state agents, and of his efforts to recover personal and pubic poise after loss of an arm and the use of an eye. The danger of indulgent self-dramatization, common in a certain type of South African exile literature, is mainly set aside here by the nature of the subject, which is his own trauma. It marks a moment of transition from the tendentious public prose of previous writing by South African political figures, towards the truth of inner feelings, and a vivid acknowledgement of the sensuous pleasures of life.

11. Ketelo et al, op. cit., p 38.

12. Only one of the leaders of the mutiny in the ANC in. Angola in 1984, Mwezi Twala, appears to have gone the distance of joining Inkatha. Twala has become an organiser for Inkatha in the Vaal region. Another detainee who has been amply described in the South African press as a real agent of South African security before he was arrested and tortured in exile by the ANC, Patrick Hlongwane, has delighted in making a nuisance of himself. Released from the ANC prison in Uganda in August 1991, Hlongwane formed a grouping on his return - almost certainly with state funds - called the Returned Exiles Committee (REC), which operated out of Inkatha premises north of Durban. At a recent meeting of the National Party Youth Congress, he embarrassed President F.W. de Klerk by claiming to be the NP information officer in Soweto. He claimed afterwards to be also a military member of the fascist Afrikaner Weerstandsbeweging (AWB). (New Nation, 16 July 1993). If a character like Hlongwane had not existed - half criminal, half clown - he would have had to be invented.

13. Sachs' book, The Jail Diary of Albie Sachs (1966, since reissued) was adapted for the stage by the British dramatist David Edgar. Edgar's dramatised version was performed by the Royal Shakespeare Company and appeared subsequently on television and radio in Britain.

14. See Searchlight South Africa numbers 5, 7, 8, 9. See also Amnesty International, South Africa. Torture, Ill-treatment and executions In African National Congress camps, London, December 1992 (AI Index AFR 53/27/92). The Skweyiya report (see note 16) noted ‘gratuitous and random violence perpetrated on the detainees by camp guards' at the ANC prison in Uganda, well on into 1991. (p 47).

15. Mkatashingo, ‘The ANC Conference: From Kabwe to Johannesburg', Searchlight South Africa No. 6 (January 1991), pp 91-94.

16. Report of the Commission of Enquiry Into Complaints by Former African National Congress Prisoners and Detainees (the ‘Skweyiya report'), Johannesburg, August 1992. p56.

17. The date was mistakenly given as July 1992 in Paul Trewhela, ‘The ANC Prison Camps. An Audit of Three Years, 1990-1993', Searchlight South Africa No. 10 (April 1993), p 19. In the same article the name ‘David Moshoeu', MK regional commander in Angola at the time of the mutiny, should have read David Mashigo. His real name is Graham Morodi. The Stuart Report acknowledged that the mutiny was caused very largely by ‘excesses of the security department'. (ibid, p 16) Thus its suppression.

18. As executive president, Tambo was responsible for the army, the security department and information and publicity. For a discussion of Tambo's responsibility, see Paul Trewhela, ‘The ANC Prison Camps', op. cit., pp 24-26. Tambo was buried in South Africa in May this year in an atmosphere worthy of a Christian saint. Standing beside Nelson Mandela during the ceremony, in combat fatigues and giving the Umkhonto salute, were two of the leaders from the exile most heavily implicated in abuses: Joe Modise, commander, and Andrew Masondo, former national commissar and founder of one of the most brutal security organs, the People's Defence Organisation.

The Skweyiya report quotes a statement made by Tambo on behalf of Umkhonto we Sizwe at the headquarters of the International Commission of the Red Cross on 28 November 1980. Tambo solemnly undertook to respect the conventions and undertook in particular to apply the Geneva Convention on the treatment of prisoners of war, by which he meant ‘regular armed forces of the South African regime captured by the cadres of Umkhonto we Sizwe'. This excluded spies.

The Skweyiya Commission found there had been ‘shocking and persistent violation of the Code of Conduct by certain members of the security department of the ANC' (p 24) - violation also, by implication, of Tambo's undertaking in Geneva. Tambo made this undertaking during one of the most terrible periods of oppression of ANC members in Angola, when -among others - Immanuel Zulu was in Quatro. It was made for international political consumption, and perhaps in the hope of providing a modicum of safety for captured guerrillas in South Africa. But it had no relevance in the camps.

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