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 Toiva
A few months after Bram Fischer’s trial ended, I was offered more work than I could manage by large firms of attorneys representing clients able to pay a reasonable fee. As there was no major political trials pending, I settled down to predominantly civil cases that enable me to put to the test by Joel Carlson. He had briefed Isie Maisels and me during the late 1950s when we brought a series of habeas corpus applications against farmers using prison labour on their farms. Although Joel and I were close family friends, relationships between us soured when I cautioned him that the Law Society might take steps against him for his immoderate language in public statements, and his persistence in commenting to the media in his cases. He retorted by saying that I was no longer the man he had known at university, that political cases had to be handled differently and that I had turned out the same as the mainly conservative lawyers at the Bar. The unjust accusations stung.
Despite this hiccup, Joel approached me when London solicitor asked him to act for thirty-seven South West Africans, mainly from Ovamboland on the Angolan border. They had been detained for months- a few for almost two years – in South African jails. They were charged with terrorism interns of a recently promulgated act, which abrogated every principle of the rule of law. The act authorized the police to detain any person thought to have committed an act of terrorism or who might have information regarding the commission of such an act. This law passed through Parliament with the concurrence of the official opposition, the sole dissenting voice being that of Helen Suzaman. It was to operate retrospectively to 1962, its provisions were extended to South West Africa, and, worst of all, then death sentence could be imposed. As I scanned the indictment I saw that a number of thirty-seven were specifically charged with the murder of chiefs and headmen who they considered collaborators with the Pretoria regime. Joel had no experience in cases involving o many accused facing such serious charges. My experience in the Rivonia trial, as well as other major cases, was needed.
For the first and only time in my legal career, I hesitated about taking on a matter such as this. I feared not being able to handle the renewed pressure. On the face of the indictment and the circumstantial detail set out in it, as well as Joel’s tentative conclusion that many would have no defence, more than ten of them could be sentenced to death. Then men had been tortured by the same police team that I knew from past cases. Under torture, the accused made statements implicating themselves and others. In addition, they were isolated from their families. Their only garments were the clothing they wore when the police arrested them. The provision of the Terrorism Act had been applied long before it was enacted. The more Joel spoke, the greater the conflict with me. I said I’d think it over and let him know in the morning. Taking on this case would mean shedding some of the work I was committed to. Before I made a decision I needed to discuss matters with Arethe, as I knew that I became difficult to live with when the shadow of death loomed over those I defended. Actually, I made up my mind less than an hour after we parted.
In a phone call to him I suggested he ask for all statements made by the accused, adding that I would prepare a request for further particulars as well as a questionnaire relating to their activities an interrogation. I took this decision without discussing it with anyone. How could I live with myself if I had opted out? How would my friends in jail, under house arrest, or in exile, have felt about me? The first accused was Eliazar Tuhadeleni. He was a peasant farmer to whom the young guerrillas, infiltrating from Angola into Ovamboland, had turned for help. He assisted them in establishing a camp in the bush, in the recruitment of young men and the provision of food. When the camp was attacked by South African helicopters and ground forces most of the accused were arrested, but Tuhadeleni escaped. For almost a year he roamed the countryside, earning himself the nickname ‘General de Wet,’ after the elusive Boer leader.
Tuhadeleni knew the Bible in Ovambo by heart. As there was no Oshivambo dictionary he would point out the verse, or at times the very word, to the two teachers among accused, Jason Daniel Mtumbulua and Johnny ja Otto, whenever they found it difficult to interpret his words and thoughts. He was steeped with the oral history of the Ovambo people and produced a genealogy of the Ovambo king going back three centuries. He wanted to plead guilty and be put to death on condition that all the others were freed. The chairman of the internal wing of the South West Africa People’s Organization (Swapo), Emmanuel Gottlieb Nathaniel Machuriri, and two teachers who were on the executive, couldn’t understand why they were charged with terrorism. They were in Windhoek, not in Ovamboland. They had publicly opposed incursions by armed guerrillas. After I explained the doctrine of common purpose to them, Machuriri, a lay preacher, uttered an unprintable expletive.
Jason, the math teacher, and the most articulate and intelligent among the accused, quietly spoke to us about Herman Toivo ja Toivo, Swapo’s Ovamboland leader. (The use of African first names was not yet in vogue. Such first names were not even mentioned in the indictment.) He feared that Herman had been permanently affected by the physical and mental torture he had undergone in detention. We told him that others had been cured of a similar affliction slowly but surely by the companionship of their co-accused, by interaction with their lawyers and by visits from their families. Of course, in the case of our clients, no such visits were allowed. We advised against calling in a psychiatrist, as there was a danger that Herman would be sent to a mental hospital. There he would again be isolated and under police control. Happily, within a couple of weeks his condition improved.
As one of the founders of Swapo, Herman was a well versed in the country’s political history. In brief, after the First World War the League of Nations directed South Africa to govern the territory. Since then there had been breeches of trust and from the 1950s, the United Nations regularly passed resolutions challenging South Africa’s right to deal with South West Africa as one of its provinces. In keeping with this knowledge and background, the accused wanted us not merely to claim their innocence, but to challenge the validity of the Terrorism Act. The final section of this Act provides that the law would also apply to South West Africa.
By now Denis Kuny and Ernie Wentzel were part of the legal team. None of us knew much about public international law. And our clients argued that they were not South Africans but Namibians. They found it difficult to accept that. Parliamentary sovereignty applied. We asked John Dugard, then professor of public international law at the University of Witwatersrand, for an opinion. He advised that a plausible argument could be made that the resolutions passed by the United Nations had terminated South Africa’s mandate. He felt our clients could not be indicated under a law passed by South Africa’s Parliament.
In terms of the Bar rules, John Dugard could not join our legal team. On the other hand, we felt too junior for such an audacious argument. Without a senior member of the Bar to argue the point, we might be accused of a gimmick to embarrass the government. It was left to me to persuade Namie Phillips to lead the defense team. I convinced him that his stature, integrity and apolitical profile would be helpful in persuading Judge Ludorf not to sentence anyone to death. But when he saw John Dugard’s opinion he said the point wouldn’t succeed, and doubted if the argument was appropriate.
Subsequently the five of us met in the Wits law library for more than five hours trying to persuade him to challenge the Act. Eventually, long past midnight, we agreed to leave the final decision to him. We were to meet in his office the next morning at nine.
I was at his office before eight and asked him to take one final decision into consideration. If some of our clients were sentenced to death, what would our colleagues throughout the world say if we had not raised the key point uppermost in the minds of our clients? A point also debated at UN and in articles published in learned journals.
He was clearly upset by my audacity and didn’t invite me into his office. As he was closing the door, he said that he was sure no reputable academic would put his name to an article advocating such an outrages view.
An hour later we met as arranged. He asked John if he would write an article in support of his view and if a reputable law journal would publish it. Without hesitation, John said yes to both questions. Namie sighed in despair. While I had a private word with John, we were to draught the notice to the registrar and the attorney – general informing them that the point would be taken.
That South African lawyers were prepared to argue in a South African court that South Africa had no right to try Namibians brought some joy to our clients, but none to prosecution, judge, court officials, and the government. Nor did it please the vast majority of whites in South Africa. Even some of our friends at the Bar were critical of us, as was the government- supporting sector of the media.
As the prosecutor, Piet Oosthuizen, knew a little as we did about international law, a senior government law advisor came to argue the case against us. The reaction at the United Nations and in the media throughout the world, particularly the Nordic countries, the United States and the United Kingdom, was strongly adverse to the South African government, and they called for the Namibians to be released and returned to their country. Save for the support it received from Salazar’s fascist government in Portugal, South Africa stood alone. Again, in the eyes of many, the accused became the accusers at a time when the regime thought it had crushed its opponents. In this, the case of thirty-seven Namibians was reminiscent of the treason and Rivonia trials. There were other similarities.
The accused were tried in the same Old Synagogue where Mandela and the others had sat for almost three years, charged with treason. The security arrangements were elaborate as they had been for the Rivonia trial. A small corrugated iron structure was erected to serve as a cell. It was not big enough for a single table or chair to use for consultations. We insisted on our clients being brought to court as early as possible so we could consult before proceedings started. Senior correspondents from the media and observers from universities and human rights organisations vied for the few available seats in a building whose acoustics were designed for the rabbi, the cantor and the choir, not for lawyers.
Part 2 continues in next week’s edition