Extract from ‘Odyssey to Freedom’ by George Bizos
Bizos’ personal account on his contribution to Namibia’s independence
My Lord, we find ourselves here in a foreign country, convicted under laws made by people we have always considered foreigners. We find ourselves tried by a judge who is not our countryman and who has not shared our backgrounds.
– Andimba Herman Toivo ja Toivo
NAMIE Phillips was above average height, straight as a rod, his bearing that of the officer he had been during the Second World War. In a firm voice and without gestures, he kept close to his prepared argument. Although most of the thirty-seven could not follow the detail, they knew the effect of what he was arguing- let these men go, we have no right to try them nor punish them in Pretoria.
Sitting on Namie’s left was John Dugard, who had prepared the argument. He had a row of books in front of him with the relevant pages marked, ready to pass them to Namie the instant he needed to read the appropriate quotations. Although this was John’s day in court, the archaic rules prevented him from robing or presenting argument himself. Sitting on Namie’s right, facing the judge with the thirty-seven behind us, I half turned to look at them and saw their faces relaxed for the first time. I saw there a hope that something good might come out of this.
The judge appeared to be taking the argument seriously, was almost differential to Namie and asked only the occasional question. I started hoping that our bold step might induce the judge not to pass the death sentence. He was known for his support of the government, but he was also a politically sensitive man.
Parliament was supreme
The state’s argument was expected: Parliament was supreme; the courts had no jurisdiction to pronounce upon the validity of legislation- propositions for which there was ample authority in the South African courts. No serious attempt was made to deal with our arguments. If the South African government could thumb its nose at the world, it was probably too much to expect that one of its judges would say that this was wrong. Our application failed, but fortunately without adverse comment by the judge. No doubt the stature of Namie Phillips saved us from such embarrassment. Judging by the worldwide support we received during the rest of the trial, we would have been acquitted if we had been tried by a jury of honest men and women drawn from the world at large.
A number of notorious security policemen from Johannesburg and Pretoria, repeatedly accused of extracting information through torture, came to give evidence. They referred to the accused as terrorists who had established a terrorist camp in the bush. This the South Africans had kept observation before they executed their carefully planned military attack. They described how they had pounced on the terrorists using helicopters and heavy weapons. They did not make it clear whether they regarded this as a battle or as police action aimed at effecting arrests. They found weapons and ammunition and documents issued by Swapo. Because the tall grass had been flattened, they inferred that a platoon of recruits had been drilled on this ‘parade ground’.
Some of those detained gave evidence of the camp routine and said that their objective was to get rid of South Africans from their land. They also described their months of interrogation, the sleep deprivation, serious assault, electric shocks, and verbal abuse they suffered. Their interrogators had taunted them as no longer being ‘big men’ with no chance of lawyers, priests, or doctors coming to their assistance. They were under the authority of the South African Police who knew how to treat ‘kaffirs’.
At the time, only a few judges would receive evidence or allow cross- examination regarding the treatment of an accused after arrest. Judge Ludorf did not fall into that category. The moment the cross-examiner approached this subject, he would stymie the line of argument. Judges knew, or must have suspected, that some of the allegations of police torture were true, but many would claim they saw no relation between this and the evidence before them.
Most of the accused, with the assistance of ja Toivo and the schoolteachers, had written lengthy statements concerning the unspeakable torture they had suffered. Our team was divided on whether to cross-examine the police on the treatment of the accused. Namie Phillips was against this strategy and his view eventually prevailed.
As most of the accused had no defence to the charges, there was no reason for them to give evidence under oath. If they went into the witness box, the cross- examination would be nothing more than allegations unsupported by evidence. However, if they didn’t, we risked criticism from the judge and might further diminish our slender chance of avoiding the death penalty.
The most serious evidence was against the young men who had openly carried their AK47s through the villages along the border and in the northern town of Oshakati, the regime’s outer administrative post. It was in the one of the many Cuca bars in the region that a chief accused of collaboration had been shot and some of his followers injured by one of these young men, Tall Herero.
Tall Herero’s grandfather had been a rare survivor of the German army genocide campaigns against the Herero some seventy years earlier. He had fled to the then Bechuanaland protectorate. Tall left school to join Swapo and undergo military training party to avenge the wrong done to his family and people, and partly in the hope that he would one day return to an independent Namibia to claim the ancestral lands his grandfather spoke of, which were now occupied by the Boers. He had also joined other armed attacks where lives were lost. There were many witnesses to prove his guilt. However, he would not deny what he had done.
While we were consulting in the courtroom with the political leaders I looked over my shoulder and saw Tall sitting on a bench alone, staring into space. I went over and sat down, apologising that we had not paid much attention to his case. I said that we would argue that the grievances of the people of Namibia were well founded, that his actions were of a political nature and that he should not be sentenced to death. Tall said he knew that he was going to die. He understood that it would be freedom or death when he joined the struggle. Having lost his freedom it was better to die than be jailed for life. He knew his case was hopeless, but he thanked us for what we were doing and asked me to go back to work on the cases of those who had a chance of being acquitted or received lighter sentences.
The evidence against the three leaders of the internal police concerned publishing a cyclostyled news- sheet, referred to as the Swapo Times. Written mainly in Oshivambo, it repeatedly spoke of the wrongs done by the moordlustige- blood- thirsty- Boers and the justice of the Swapo cause. The indictment alleged that their broadsheet promoted hostility between the races, an offence under both the Terrorism and Suppression of Communism Acts. It was also alleged that in praising Swapo they were responsible for the organisation’s actions, including the armed struggle in Ovamboland.
When we refused to accept the translations into Afrikaans produced by barely literate policemen who distorted the meaning of important passages, the court was presented with a problem. There wasn’t a sufficient competent Oshivambo/ Afrikaans interpreter in the department of justice in South West Africa. A senior clerk in a mining house reluctantly agreed to become the court interpreter, but refused to translate the documents as he did not want to become a witness against his own people. The judge was prepared to postpone the trial until the translation issue could be resolved.
The one of the high-school teachers, Johnny ja Otto, offered to redo the translation, submit drafts to the prosecution and favorably consider any changes suggested by them. And this is what happened. Soon a strange friendship developed between the prosecutor Piet Oosthuizen and ja Otto. Neither regarded the other as the stereotypical enemy. When Piet asked ‘Johnny hoekom is jy so maer?’- Johnny, why are you so thin? – He received a playful answer. ‘Dit is my onskuldwat my so maak, Meneer’ – It is my innocence that makes me so, Sir.
Oosthuizen knew that we were preparing the three from Windhoek to give evidence Oosthuizen knew that we were preparing the three from Windhoek to give evidence. And he knew the thrust of our government. That would deny associating themselves with the acts of violence that had taken place. That they would deny provoking hostility between the races. That they would claim to have written the truth about the grievances of the people of Namibia. He must also have known that we were consulting with Professor John H Wellington, who had written a scholarly chronicle of the injustices done to the people of Namibia, first by the Germans and then by the South Africans. Oosthuizen had to assume that, with the assistance of John Dugard, we would introduce the evidence placed before the World Court in an attempt to prove that the apartheid laws and practices were contrary to internationally accepted norms. He knew that the only way to avoid the court being used as a platform to condemn his government’s policies way to make a deal with the defence.
Although plea-bargaining sanctioned by the court was foreign to our criminal procedure, he was confident that then judge would privately approve of any deal we made. After some hard bargaining, we agreed to an offer that our clients from Windhoek would change their plea to one of guilty under Suppression of Communism Act and that an effective sentence of imprisonment for no longer than three months would be imposed. They sought then blessing of their co-accused, which was readily given.
The State closed its case and we announced that we would not be leading any evidence. We argued that there was insufficient evidence to convict some of the more elderly, whose degree of participation was minimal. In one instance nothing more than giving some dry spinach to the insurgents.
The judge took time to write his judgment. He acquitted a couple more than we had asked for, but found it necessary not only to convict ja Toivo, but to attempt to discredit him as apolitical leader. He also found it necessary to praise the security police, saying that they had acted in a responsible manner and that the security f the State was in safe hands.
When Namie Phillips stood up to say ‘As Your Lordship pleases’ at the end of the judgment, the judge announced that, after due consideration, and without hearing any evidence in mitigation, he would not impose death sentences because the accused had been misled by agitators.
I looked at the young Tall Herero. He was smiling and hugging his comrades. When our eyes met his smile broadened and he gave me the thumbs-up sign. So much for those who, in support of the death penalty, contend that it is preferred by those likely to face life imprisonment. We thought the presence of international observers, including Richard Falk of the Woodrow Wilson Institute of Foreign Affairs at Princeton University, the dozens of ambassadors, correspondents of leading newspapers and television stations, and the trenchant editorial condemnation throughout the world, must have played a part in persuading the judge to make the announcement.
In the light of the Judge’s announcement, our intention to lead evidence in mitigation by some of the accused, Professor Wellington and international law experts Joel Carlson had seen in America and the United Kingdom, had to be revised. We decide that ja Toivo would follow the example of Nelson Mandela and read a statement from the docks, speaking not only for himself, but also for his co-accused and the Namibian people. He insisted on answering the judge’s criticisms of him in strong terms, even though we warned that his sentence was likely to be increased. He didn’t care, he was going to have his say. After he had read the first two paragraphs about being tried in a foreign country, the judge interrupted him, saying that it was his duty to judge the. Ja Toivo ignored this and continued.
We are far away from our homes. Not a single member of our family has come to visit us, never mind be present at our trial. The Pretoria jail, the police headquarters where we were interrogated and where statements were extracted from us, and this court, is all we have seen of Pretoria. We have been cut off from our people and the world.
The State has not only wanted to convict us but also try to justify the policy of the South African government. We will not even try to present the other side of the picture because we know that a court that has not suffered in the same way as we have cannot understand this. This is perhaps why it is said that one should be tried by one’s equal- we here are being tried by our masters. Had we been tried by our equals it would have been necessary to have any discussions about grievances: these would have been known by those said to judge us.
He could not be persuaded to leave out the paragraph in which he took the judge to task for having called him a coward:
In the last war I joined the army to fight for this country while this judge was a traitor and belonged to the pr-Nazi underground organization which committed sabotage as I stood guard at the military installations facing the bullets of his colleagues. Now I am called a coward and he is the judge.
The prosecutor was most upset, so much so that he threatened to reopen the case. He wanted to contrast this aggressive statement with the one ja Toivo had made to the police. We reminded him that he would have to convince the court that the statement had been made freely and voluntarily. Oosthuizen swallowed his indignation.
After ja Toivo’s statement from the dock, the judge listened to the plea we presented in mitigation. According to our arrangement, the internal Swapo leaders were sentenced to an effective three months. Life imprisonment was imposed on most of the rest, with lesser sentences for those who had not undergone military training but who had assisted the guerrillas.
Ja Toivo was sentenced to twenty years in jail and his statement eventually led to an amendment of the Criminal Procedure Act which deprived an accused of the right to speak from the dock. The judge let it be known that people like me had abused the right to speak from the dock to make propaganda against the State and insult the judges. He also told Margret Smith of The Sunday Times that he knew that I was Bram Fischer’s successor as leader of the Communist Party.
Some years on, Professor Barend van Niekerk, a keen researcher on judicial independence in South Africa , asked Judge Ludorf whether the government had ever tried to influence any aspect of a case where he presided. Yes, he said, but only once. The then prime minister, John Vorster, had phoned to ask that he not impose death sentences in the South West Africa terrorism trial. The prime minister wished to avoid further pressure on the South African government. Judge Ludorf told the professor that he regretted having listened to Vorster: he should have followed his instinct. Had he done so, he would have sentenced about a dozen of them to death.
The judge had a serious drinking problem and took early retirement.
Namibia became independent in 1990 with Sam Nujoma as its first president and jo Toivo as one of his senior ministers. None of those sentenced to long terms of imprisonment served their full sentence.