Undermining of the rule of law in Abahlali case


Undermining of the rule of law in Abahlali case
Paul Trewhela

08 November 2010

Paul Trewhela says prosecution delays have exhausted defence funding in a “political trial”

The trial on charges of public violence, assault and murder of twelve members of the shackdwellers’ organisation, Abahlali baseMjondolo – now in its 13th month in Durban/eThekwini – suggests a process of breakdown of law in South Africa . In what could reveal itself to be the first and most important political trial under the post-apartheid system of government, what is threatened is a breakdown of the constitutional structure of South Africa set in place in 1994.

In an Emergency Press Release on Sunday 27 September last year, AbM appeared to acknowledge that its members had been responsible for the deaths of two men, however under conditions in which they themselves had been attacked by a large gang of armed attackers. The attack appears to have had a strong political character.

The AbM statement reads: “Last night at about 11:30 a group of about 40 men heavily armed with guns, bush knives and even a sword attacked a meeting of the Kennedy Road Development Committee (KRDC) in the Kennedy Road community hall. There was no warning and the attack was a complete surprise. …The men who attacked were shouting: ‘The AmaMpondo are taking over Kennedy. Kennedy is for the AmaZulu.’ The KRDC and other community members who rushed to their aid were unarmed but tried to defend themselves as best they could. …

“The attackers…destroyed 15 houses belonging to people on or connected to the KRDC before launching their attack. They were knocking on each door shouting ‘All the amaZulu must come out’ and then destroying the shacks. …As far as we know two of the attackers were killed when people managed to take their bush knives off them. This was self defense.

“The Sydenham police were called but they did not come. They said that they had no vans available but they didn’t radio their vans to come. …This morning the police arrived under the authority of Glen Nayager and made eight arrests. As far as we can tell only members of the Kennedy Road Development Committee (KRDC) have been arrested and not one of the perpetrators has been arrested. …[All] the people who are arrested are amaMpondo.

“We believe that this attack has been planned and organised by Gumede, from the Lacy Road settlement, who is the head of the Branch Executive Committee of the local ANC. He is a former MK soldier and is armed. There has never been political freedom in Lacy Road. Since 2005 we have been told that anyone wearing the red shirt of Abahlali baseMjondolo in Lacy Road will be killed.”

This and other supporting statements would indicate a definite political element in the trial of the 12 members of AbM. For one thing, none of their attackers appears to have been arrested and charged with an offence. Nor have the organisers of the attack been identified and charged. This itself would tend to suggest prejudice on the part of the police, the prosecution service and the court, and must tend to compromise in advance a plea of self-defence on the part of all or some of the accused.

If only because of the issue of actual or purported conflict between amaZulu and amaMpondo, this becomes a trial with a strong political character in which the highest degree of judicial probity is demanded of the police, the prosecutorial service and the court. The available evidence is that this quality of judicial integrity has been lacking from all three agencies. That would tend to suggest the character of a political trial.

There is further a well known saying in law: Justice delayed is justice denied.

In the Rivonia Trial of 1963/64, in which Emeritus President Nelson Mandela and seven co-accused were sentenced to life imprisonment for sabotage, the legal process lasted eleven months from the day on which they were charged to the day they were sentenced – two months less than the current, unfinished trial of the AbM 12. The accused in the Rivonia Trial suffered no delay under the apartheid system, and justice was not denied. All those who were sentenced were in fact guilty as charged, in terms of the existing law. Given the status of the document “Operation Mayibuye” in this trial, in which a plan for violent military action in South Africa had been set out by the High Command of Umkhonto we Sizwe, directly involving several of the accused, the issues of violence in this trial were not less complex than in the AbM trial.

By comparison, the trial of the AbM 12 could as well drag on for months or years to come, with the state continuing to seek postponement after postponement, acceded to by the court in defiance of international standards and also…by the standards of the apartheid period.

This sectional and partisan character of the charges against the accused and the conduct of the court itself now increasingly appear to suggest political manipulation of the legal system on behalf of ANC structures in KwaZulu Natal, the main provincial power base of the ruling political ascendancy in the country.

It suggests a political vendetta waged against a poor people’s movement, perceived by the power elite as a threat to its own political support base among the province’s poor. There appears to be a strategy to undermine the legal process through a process of attrition, whereby the financial resources of AbM would be exhausted and with it its ability to mount a proper defence of the accused. AbM has been compelled to raise an appeal for funds – both within South Africa and internationally – to be able to continue to provide a proper legal defence of its members.

The whole matter casts a stain of shame and disgrace on the most important political narrative in the modern history of South Africa.

Nelson Mandela and his colleagues in the Rivonia Trial – Walter Sisulu, Govan Mbeki and their ANC and Communist Party fellow-accused – would probably have been hanged, if it had not been for the funding of their trial by the Defence and Aid Fund, based in London.

Directed by exiled members of the SACP but funded through outreach activities of the Church of England, set up initially under the auspices of Canon John Collins, the Dean of St Paul’s Cathedral in London, the International Defence and Aid Fund was crucial for the preservation of basic structures of the rule of law in South Africa through the worst decades of the apartheid period. Especially in high profile political trials in the three decades between the Sharpeville massacre in 1960 and the release of Mandela in 1990, the Defence and Aid Fund ensured that convictions in political trials in South Africa had to be grounded in evidence that would hold up in court, irrespective of the morality of the legislation that governed the courts.

This legal structure generally held intact. On the first day of the Rivonia trial, the entire prosecution case was properly thrown out by Judge Quartus de Wet, after a successful application was made on legal technicalities by the chief counsel for the defence, Bram Fischer QC, who as it happened was also chairman of the illegal Communist Party and – as his own subsequent life sentence proved – every bit as guilty as the main body of the accused. First-rate legal defence in this hanging trial was funded by D&A, as those of us who were accused in political trials in those years often called it. This funding of top quality legal defence ensured that one of Mandela’s co-accused – Rusty Bernstein – was found not guilty and acquitted, even though, as his autobiography later acknowledged, he was in fact as guilty as those sentenced to life imprisonment (but not…to death).

A whole raft of founding fathers of the legal system in post-apartheid South Africa – Emeritus Constitutional Court Judge Arthur Chaskalson, the late Judge Ismail Mohammed, Advocate George Bizos SC and many others – spent decades in defence of the accused in political trials in this way, with their work as counsel and that of their instructing attorneys funded by the D&A Fund in London.

This constituted a barrier in law that was never overturned by an oppressive state. It was the norm in hundreds of political cases. My wife and I were defended in a trial lasting eight months from the time we were charged, at no expense to ourselves, and at the sole expense of the Defence and Aid Fund, before being properly convicted in terms of the evidence. Two of our fellow accused against whom there was insufficient evidence were acquitted. There is no assurance this would have happened without the superb quality of our defence, funded by D&A.

My brother-in-law, who had received military training in China with the first tranche of members of Umkhonto we Sizwe to be sent abroad for this purpose – a group that included two of Mandela’s co-accused in the Rivonia Trial, Raymond Mhlaba and Andrew Mlangeni – was also acquitted and released at the end of a very long trial, on the grounds of insufficient evidence, all funded by the Defence and Aid Fund.

Members of the present government, and ministers under all four State Presidents since 1994, owe a personal debt to this fund, which ensured that a very important standard of jurisprudence was upheld in their own trials. The State President, Mr Jacob Zuma, is one of them. To that extent, modern South Africa owes a debt to this Fund for its Constitution, its Parliament and its system of Law, as well as for the welfare and even the lives of hundreds of political activists.

All this is now threatened.

Amnesty International, based in London, which alongside D&A provided crucial supervision of political trials and a defence of the rule of law in the decades before Mandela’s release, conducted its own independent investigation of the events at Kennedy Road on the nights of 26/27 September last year, with a statement of its findings issued on 16 December last year, the Day of Reconciliation. In this report of 11 months ago, headed “South Africa: Failure to conduct impartial investigation into Kennedy Road violence is leading to further human rights abuses” – with still no end to the trial yet in sight today – Amnesty suggested that legal procedure in South Africa was in grave deficit in this most sensitive of issues.

My own comment on the Amnesty report appeared on Politicsweb shortly afterwards.

This was nearly one year ago. By contrast with the Rivonia trial, the AbM 12 have suffered inordinate delay, in which justice has been effectively denied to them. This was understood already last May by Jeff Guy, in an article in The Mercury headed “Justice delayed and denied for 12 Kennedy Road accused”.

By contrast, to its honour, the Diakonia Council of Churches in South Africa – with exemplary guidance from Bishop Rubin Philip, the Anglican Bishop of Natal , a former colleague of Steve Biko in the Black Consciousness Movement – has provided steadfast witness, in the tradition set previously by Canon John Collins in London. This can be seen in statements such as “When liberators become oppressors” by Reverend Roger Scholtz
and “Current powers threatened by the power of the poor” by Bishop Michael Vorster.

The thinking of the ruling power in the ANC and government in relation to matters of this kind needs to be analysed. A clue can be found in the response of the National Working Committee of the ANC on 2 November to the civil society conference convened by COSATU last month, as issued by Gwede Mantashe, the secretary general of the ANC who doubles as chairman of the SACP (the same post held by his predecessor, my trial and prison colleague, Bram Fischer). In this statement, Mantashe described the “mobilization of a mass civic movement outside of the Alliance partners and the ANC” as something that might be interpreted as “initial steps for regime change in South Africa “.

Consider that phrase, “regime change”.

In terms of the Constitution agreed in 1994, South Africa is a parliamentary democracy in which government is chosen in accordance with the will of the governed, expressed in a general election. If the electorate wishes, it may replace any one party with another as the party of government, in terms of the constitutional process. This is not “regime change”. It is simply the replacement of one governing party by another. That is how governments are changed all the time in parliamentary democracies across the world, in accordance with the rule of law.

Mantashe is suggesting something very different.

In South Africa , the long period of government by white minority rule is often described with that term, “regime”, as in the phrase “apartheid regime”. Mantashe is suggesting that the hold of the ANC on government is that of a “regime”, meaning it would require a change of constitution – with all the immense expenditure of energy and life that took place up to 1994 – for the ANC to be displaced as party of government. It suggests that he and the National Working Committee of the ANC view their tenure of office in the state more as that of…a holding of power in perpetuity, as of right, as in the rule of an absolute monarch or king, from which the word “regime” derives (from the Latin word “rex”, for king). In modern political language, that means dictatorship.

This is the not-so-hidden meaning behind Mantashe’s argument that the critics of his party represent “reactionary forces” intent on “derailing the revolution”, informed by “the neo-liberal view that liberation movements in the region are too strong”.

This is indeed a non-liberal and anti-liberal view of parliamentary government, not surprising from the leader of a party (the SACP) which holds as an article of faith to the practice of “dictatorship of the proletariat”. In the same way, in associating the critics of the present administration with the Movement for Democratic Change in Zimbabwe, Mantashe and the NWC view the ANC as companion to the murderous government of ZANU-PF in Zimbabwe, which they regard as a fellow “liberation” movement.

The AbM trial in Durban/eThekwini is now the most graphic faultline in the struggle to preserve democratic freedoms in South Africa.

The accused in the Rivonia Trial had the propaganda and publicity support of a world superpower, the Soviet Union, and its dependent states, as well as a global network of Communist Parties across the world. Through the Anti-Apartheid Movement and the Defence and Aid Fund they had a very effective international support base in Britain for the raising of funds for their defence, extending into all the main parties in the House of Commons, the legal profession, the universities, the trade unions and throughout the society.

The Abahlali shackdwellers are by contrast in a pitifully different situation, yet facing prosecution from an equally powerfully state.

Everyone concerned for the future of civil liberties in South Africa should support their appeal for funding of a proper legal defence.