Justice on Trial

In September 2009 attacks took place in the Kennedy Road settlement against the leadership of the shack-dwellers’ movement, Abahlali baseMjondolo. Those attacks shook our society, and led some to observe that our hard won democracy was under attack. As the trial finally commences on Monday 12 July 2010 against those whom the state has chosen to prosecute in relation to the attacks, we remain deeply dismayed and critical of the fact that no-one has been arrested and charged:

• for launching the attack in the first place;
• for systematically destroying the homes of leaders and members of, Abahlali baseMjondolo, within the Kennedy Road settlement during and after attacks;
• for issuing death threats against leaders and members of Abahlali baseMjondolo;
• for harassment and intimidation of leaders and members of Abahlali baseMjondolo.

Our concerns about the attack in September 2009, and the events that have followed since then – as well as our support for the broader movement of Abahlali baseMjondolo – are matters of public record:

• Immediately after the attack, we issued a statement saying, inter alia: “The militia that have driven the Abahlali baseMjondolo leaders and hundreds of families out of the settlement is a profound disgrace to our democracy. The fact that the police have systematically failed to act against this militia while instead arresting the victims of their violence and destruction is cause for the gravest concern. … [M]y condolences go out to all those who have lost people whom they love and on whom they depend. It seems that some among the militia that launched the attack on the elected leadership of the settlement may also be among the dead. If, as may well be the case, the militia has been exploited by local elites determined to roll back the development of a vibrant popular democracy, then we will pray for their own healing and for a turn away from violence and lies and towards life and truth”.

• Ignoring repeated calls for a comprehensive investigation, the state justice system has only charged people from the settlement itself. They face murder and other serious charges relating to the tragic deaths that occurred after the attack was unleashed on the settlement. In November 2009, we were compelled to issue a further strong statement condemning the travesty of justice in the conduct of the court processes of those accused. Already by then it was clear that “justice has been delayed far beyond the point at which it was clear that it had been denied” and that “what is being pursued in our courts in this instance is a political agenda against Abahlali baseMjondolo”.

• Also in the November 2009 statement we declared that: “In light of the fact that this is quite clearly a political trial in which the rules that govern the practice of justice are not being followed, I am now calling for people of conscience outside of the state to join us as we set up an independent inquiry into the attack on Kennedy Road on 26 September; the subsequent demolition of the houses of Abahlali baseMjondolo members, the ongoing threats to Abahlali baseMjondolo members, the role of the police, politicians and courts in this matter”. It is critical to note that none of these matters will be dealt with satisfactorily in the upcoming trial.

The charges against the accused are serious indeed, but our faith in the legal process has been sorely tested by this stage. Nonetheless, we call for a fair and proper process and we will pay close and respectful attention to the trial and its outcomes. The demand for fairness is surely the least demand we can make of the justice system of a democracy.

Issued by:
Bishop Rubin Phillip (Diocese of Natal, Anglican Church of Southern Africa).
Church Land Programme.

11 July 2010.

Annexure 1: Democracy Under Attack in Kennedy Road, Durban

I was torn with anguish when I first heard of the unspeakable brutality that has raged down on to the Kennedy Road shack settlement. In recent years I have spent many hours in the Kennedy Road settlement. I’ve attended meetings, memorials, mass ecumenical prayers and marches. I have had the honour of meeting some truly remarkable people in the settlement and the work of Abahlali baseMjondolo has always nurtured my faith in the power and dignity of ordinary people. I have seen the best of our democracy here. I have tasted the joy of real social hope here.

The achievement of our hard won democracy was a great moment of shared grace. The militia that have driven the Abahlali baseMjondolo leaders and hundreds of families out of the settlement is a profound disgrace to our democracy. The fact that the police have systematically failed to act against this militia while instead arresting the victims of their violence and destruction is cause for the gravest concern. There are credible claims that this militia has acted with the support of the local ANC structures. This, also, is cause for the most profound concern.

I have shuddered to the core as my thoughts have, with those of many others, turned to the attacks on democratic politics unleashed by apartheid and its allies in the 1980s. Once again people have been beaten, had their homes destroyed, been driven from their community and killed for their political views and practices. Once again an armed minority have used violence to implement a ban on a democratic organisation favoured by a majority. Once again there is just cause for deep concern about the role of the police. Once again we in the churches are looking for safe houses for activists, accommodation for political refugees who have fled with nothing more than the clothes on their backs, doctors for the injured and lawyers for the jailed. Horrors that we all believed to have been buried in our past now stalk the present. This is unacceptable. There can be no compromise on this score. I will take my anger and my fear for the future of our democracy to the highest levels of leadership in our country and to our sister churches around the world. I encourage others to do the same.

In 2007 I was part of a group of church leaders that issued a statement testifying to the brutality and political intolerance that the Sydenham Police had unleashed against Abahlali baseMjondolo in our presence. It is clear that the Sydenham Police should not be allowed to police Kennedy Road or to investigate the crimes that have been committed in recent days. A credible and independent force needs to be deployed as a matter of urgency.

It is equally essential that all of our political leaders take immediate steps to distance themselves from the actions of the militia that have seized control of the settlement, that they call party members who have been complicit with this militia to account, and that we all affirm that Kennedy Road and its residents have the same right to democratic practices as everywhere else and everyone else in South Africa. This includes the right to dissent.

Of course my condolences go out to all those have lost people whom they love and on whom they depend. It seems that some among the militia that launched the attack on the elected leadership of the settlement may also be among the dead. If, as may well be the case, the militia has been exploited by local elites determined to roll back the development of a vibrant popular democracy then we will pray for their own healing and for a turn away from violence and lies and towards life and truth.

Many people are asking what they can do. I would like to make three suggestions:

1. It is essential that the attack on democracy in Kennedy Road is widely publicised so that we can all confront what has happened and ensure that it never happens again. We need to give platforms to the victims of these attacks where ever we can.
2. It is also essential that we convey our concerns to our political leaders with urgency and clarity. I will be writing to President Zuma and encourage others to do the same.
3. Many people have fled their homes with nothing but what they could carry. They need urgent financial assistance. I have agreed to co-ordinate a relief fund and donations can be made to: Diocese of Natal Trust Account, First National Bank
Account number: 509 3118 7386; Branch code: 257 355, Midlands Mall Branch, Pietermaritzburg, South Africa
A democracy that is not for everyone is a democracy in name only.
29 September 2009
Bishop Rubin Phillip
Anglican Bishop of Natal (KZN) and Chairman of the Kwa Zulu-Natal Christian Council

Annexure 2:

This Travesty Must End

18 November 2009

After their 6th inconclusive bail hearing today, it is now abundantly clear that the legal process for the Kennedy 13 is a complete travesty of justice. They are scheduled to appear again on the 27th November. By that time, some of accused will have been in prison for 2 months without trial – two months in prison without any evidence being presented to a court and without a decision on bail. This is a moral and legal outrage that amounts to detention without trial by means of delay. In our view, it borders on unlawful detention. I am, tonight, issuing a call for their immediate release – justice has been delayed far beyond the point at which it was clear that it had been denied.

Ordinarily in a case with such serious charges as those put to the Kennedy 13, it is in fact extremely easy for bail to be denied. Usually all that is required is that the prosecution provide the court with some evidence showing that they have, at least, a prima facie case to make in the trial itself. That the prosecution has still not presented any such evidence, despite the magistrate’s repeated concessions to give them more time to do so, indicates to us that the police simply have no case to make. What is being pursued in our courts in this instance is a political agenda against Abahlali baseMjondolo.

The Kennedy Thirteen were arrested in the aftermath of the September attack on Abahlali baseMjondolo in the Kennedy Road settlement. Abahlali baseMjondolo is highly respected for its courageous commitment to the equality of all human beings irrespective of their origins or position in society. Their recognition of the spark of the divine in every human being has been a prophetic voice calling us to conscience and grace in the moral wilderness of a country that is losing its way.

In April 2007 I visited the Kennedy Six in Westville prison where they held to a hunger strike for 14 days before the murder charges that had been trumped up against them were dropped. In November that year I, along with other church leaders, witnessed and denounced shocking police violence against Abahlali baseMjondolo.

In 2007 I had to put aside some of my exuberant faith in our new democracy as I came to understand that the days of police violence, police lies and wrongful arrest were still being used to silence those with the temerity to speak truth to power. I realised, with a heavy heart, that the days of the political prisoner were not yet over in our country.

The attack on Abahlali baseMjondolo, and the response to the attack by the police and some figures in the eThekwini Municipality and the Provincial Government of KwaZulu-Natal, have been met with grave concern across South Africa and abroad. It is patently clear that there was a political dimension to the attack and that the response of the police has been to pursue that political agenda rather than justice.

I, along with many other church leaders as well as academics and human rights organisations, have called for a genuinely independent and credible inquiry into the attack on Kennedy Road. That call has not been heeded. It has become abundantly clear that the state has taken a political position on the attack and that it has forfeited any claim to neutrality in this matter.

The Kennedy Thirteen have come to court on six occasions to ask for bail. On each occasion a group of people, sometimes wearing ANC colours, some drunk and some armed, have been at the court to demand that bail be denied. The behaviour of these people has been appalling. They have openly made all kinds of threats including death threats. Clergy are amongst those who have been threatened and the apparatus of justice has been allowed to degenerate into what looks to all intents and purposes like a kangaroo court.

On six separate occasions the magistrate has postponed the bail hearing to give the police another chance to gather some evidence that could link the Kennedy Thirteen to a crime. On each of those six occasions the police have failed to produce any evidence linking the Kennedy Thirteen to any crime. Today the bail hearing for the Kennedy Road Thirteen was postponed until the 27th of November.

There were between thirty and forty clergy present at court today, all of us deeply disturbed by this travesty. We are all committed to see this matter through.

I am, tonight, issuing a call for the immediate release of the Kennedy Thirteen from prison on the grounds that justice has been delayed far beyond the point at which it was clear that it had been denied.

In light of the fact that this is quite clearly a political trial in which the rules that govern the practice of justice are not being followed, I am now calling for people of conscience outside of the state to join us as we set up an independent inquiry into the attack on Kennedy Road on 26 September; the subsequent demolition of the houses of Abahlali baseMjondolo members, the ongoing threats to Abahlali baseMjondolo members, the role of the police, politicians and courts in this matter.

Remember those who are in prison, as though in prison with them, and those who are mistreated, since you also are in the body. (Hebrews 13:3)

The Lord will respond to the prayer of the destitute; he will not despise their plea. Let this be written for a future generation, that a people not yet created may praise the LORD: “The LORD looked down from his sanctuary on high, from heaven he viewed the earth, to hear the groans of the prisoners and release those condemned to death.” (Psalm 102: 16 – 20)

Bishop Rubin Phillip

Diocese of Natal, Anglican Church of Southern Africa
Chairperson, KwaZulu Natal Christian Council