HISTORY AND PURPOSE OFkora.matrix.msu.edu/files/50/304/32-130-1E12-84-LawCom AR 88-89 opt… ·...

HISTORY AND PURPOSE OFTHE SOUTHERN AFRICA PROJECT

The year 1989 marked the 22nd anniversary of the founding ofthe Southern Africa Project. The Lawyers' Committee for CivilRights Under Law established the Project in 1967 in response torequests for assistance in cases involving human rights in SouthAfrica and Namibia. These early contacts with the anti-apartheidmovement in southern Africa reinforced the perception that thedomestic struggle for civil rights is inextricably linked to the strugglefor human rights in other parts of the world. The Southern AfricaProject soon became a major and important part of the Lawyers'Committee.

In the over 22 years of its existence, the Project has helpedthousands of victims of apartheid and funded numerous landmarkdecisions that served as a judicial check on some of the abuses ofapartheid. In 1989, as an extension of our ongoing work in Namibia,we monitored the transition to independence.

In essence, the Project seeks:

• to ensure that defendants in political trials in South Africa andNamibia receive the necessary resources for their defense and acompetent attorney of their own choice;

• to initiate or intervene through legal proceedings in this countryto deter actions that are supportive of South Africa's policy ofapartheid, when such actions violate U.s. law; and

• to serve as a resource for those concerned with the erosion ofthe rule of law in South Africa and that government's denial ofbasic human rights.

These goals are consistent with the original mandate of theLawyers' Committee, which was created in 1963 when PresidentJohn F. Kennedy invited a group of prominent lawyers to the WhiteHouse and implored them to lend their professional skills andsupport to the struggle for racial equality. Since its inception, theLawyers' Committee has engaged the support and activeinvolvement of eminent members of the legal profession-includingpast presidents of the American Bar Association, former U.S.Attorneys General and law school deans-in civil rights work aimedat eradicating discrimination based on race, creed, color or sex. TheSouthern Africa Project similarly depends on the support, theunderstanding and the volunteerism of the legal community in theUnited States for the continuing success of its program.

On the cover: Children play in front of Independence Mural in Namibia John Liebenberg

SOUTHERN AFRICA PROJECTANNUAL REPORT

SOUTH AFRICA AND NAMIBIA:NEW CHALLENGES

BARBARA R. ARNWINEEXECUTIVE DIRECTOR

GAY J. MCDOUGALLDIRECTOR, SOUTHERN AFRICA PROJECT

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW1400 'EYE' STREET, N.W.

SUITE 400WASHINGTON, D.C. 20005

(202) 371-1212

TABLE OF CONTENTS

Introduction 5

Namibia's Transition to Independence 7

South Africa: The Failure of State Policy 24

Repression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24

Internal Resistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 33

International Pressure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 38

Financial Statements for 1988 and 1989 41

Grants and Contributions 42

~c~o~led~ements 43

Members of the Commission on Independence for Namibia 44

Members of the Board of Directors and the Board of Trustees .... 47

~dministrationand Oversi~ht 46

4

Recently freed Walter Sisulu with wife Albertina, greeting supporters Afrapix/Eric Miller

Lawyers' Committee for Civil Rights Under Law

INTRODUCTIONAn era has ended in southern Africa with the

achievement of Namibian independence andthe realization by the South African Government that the use of naked force has failed todestroy organized anti-apartheid resistance.International sanctions, and the threat of additional sanctions against a downward-spirallingeconomy, the indomitable resistance movementinside South Africa, a military defeat in Angola,the mounting cost of regional military expeditions and the white community's loss of confidence have forced difficult decisions on SouthAfrican State President Frederik W. de Klerk.

Toward the end of 1989, in response to increased internal and international pressures,President de Klerk released top African National Congress leader Walter Sisulu and sevenother long-term political prisoners and eliminated certain aspects of "petty apartheid"segregation. He promised to reduce the influence of the National Security ManagementSystem, the military's paragovernmental network; cut defense spending; end cross-bordermilitary raids; and curb the discretionarypowers of the police.

Then, in a speech before Parliament on February 2nd, 1990, President de Klerk announcedto a worldwide audience unprecedented reforms in the apartheid system. These changesincluded the unbanning of the African NationalCongress, the Pan Africanist Congress, theSouth African Communist Party and 33 otherorganizations; the temporary suspension of thedeath penalty; the release of certain of SouthAfrica's political prisoners; the lifting of restriction orders on individuals; and a limitation onthe length of detentions under the State ofEmergency.

On February 11th, ANC leader Nelson Mandela was released from his 27-year captivity.And, after seventy bitter years of struggleunder South African colonial domination,Namibia celebrated its independence on March21st.

As significant as these concessions are, thereis still a wide gap between the negotiatingposition of President de Klerk, who remainscommitted to the preservation of politicalpower apportioned along racial lines, and the

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one-person-one-vote negotiating position setforth in the ANC's Harare Declaration. Norhave conditions improved for the averageSouth African black; the extreme level of poverty and powerlessness remains unchanged.

Since its inception 23 years ago, the SouthernAfrica Project has worked on a daily basis withSouth Africans and Namibians who seek a freeand just society. Our support enables opponentsof apartheid to defend themselves againstrepressive measures and to challenge abusesaggressively. We provide direct assistance-theonly American group doing so-to the defenseof political prisoners in South Africa. We hirelawyers to defend them, pay their legal andcourt fees and supply a broad range of technical and professional skills.

In Namibia, we were the only Americannon-governmental organization to establish apermanent presence in the country to monitorthe independence process over the 12-monthimplementation period.

In the United States our work helped educatethe American public about South Africa's use ofthe death penalty against political opponents.Through news releases, briefing papers,speaking engagements and letter-writing campaigns, we mobilized pressure on the SouthAfrican Government to investigate "deathsquad" activity against political opponents. Wemonitored compliance with the 1986 sanctionslegislation and drew public attention to continuing and new violations of those laws, aswell as gaps in the regulations. Whenevernecessary, we challenged in the courts unlawfullinks between the United States and SouthAfrica.

By assuring legal representation for politicalactivists and drawing international attention tolegal and human rights issues in South Africaand Namibia, the Southern Africa Project hasbeen intimately connected with the events ofthe era as they have unfolded. This publicationis a review of the work of the Southern AfricaProject over the past two years in the context ofthe changing political climate in the region. Allof the cases described in this report were financed in whole or in part by the SouthernAfrica Project.

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W YORK TlMIlS, SATURDAY. AUGUST 12. 1989

THIl Nil

Namibian proudly disp

Signing of December 1988 tripartite agreement which led to Namibian independence

•••

This was no ordinary election.Namibians had endured more than100 years of colonial rule, and morethan two decades of illegal militaryoccupation by South Africa. TheNamibian people had survived abrutal war which pitted South Africaagainst the South West Africa People'sOrganisation (SWAPO), a Namibianliberation movement. Finally, one ofthe world's most intractable international disputes was ending with thecasting of ballots. The people weredetermining their own future.

There is no way in which, once wegain our freedom, we would evergive it up. .. We would want tohold onto it for the sake of all thosewho have died in the cause ofstruggle. .. So even if I, for example, do not benefit from the fruitsof our struggle, our labor, at leastmy child or my grandchildrenshould.. . [Namibian woman]

Finally, one of the world'smost intractableinternational disputes -wasending with the casting ofballots

History

Seventy years before the November1989 election, South Africa pledged toprepare Namibia for selfdetermination when, in 1919, theLeague of Nations entrusted theformer German colony to SouthAfrica as a Mandate territory. But,South Africa betrayed that trust: itengaged in brutal repression of theNamibian people and imposed inNamibia its policy of apartheid. As aconsequence, the United Nations, in1966, revoked the Mandate, declaredSouth Africa's continuing occupationof Namibia illegal and sought tosecure Namibia's independence.

For more than a decade South Africarefused the demands of the international community. Finally in 1978,under the terms of United NationsSecurity Council Resolution 435, SouthAfrica agreed to administer the independence process leading to elections

8

for a constituent assembly under supervision of the United Nations Transitional Assistance Group (UNTAG). But,South Africa stalled for yet anotherdecade. Finally, by a combination ofinternational sanctions, changes inSoviet foreign policy, a military defeatin Angola, and internal political pressures, South Africa was forced to implement the United Nations plan forindependence for Namibia commencingon April 1st, 1989.

South Africa's Control

Under United Nations Resolution 435UNTAG-headed by Martti Ahtisaari,the United Nations Special Representative (SR) for Namibia-was given

responsibility to supervise the independence process and to certify its overallfairness. However, United Nationsofficials chose to interpret their authority in restrictive terms. They readResolution 435 as vesting administrativeauthority in the South African government-which had unlawfully occupiedNamibia by force of arms for 23 years.According to their interpretation, Resolution 435 entrusted to Administrator-

General (AG) Louis Pienaar, SouthAfrica's colonial governor in Namibia,responsibility to run the governmentalmachinery, maintain law and order,draft the election laws, register voters,print the ballots, staff the polls andcount the votes.

This grant of control to South Africathroughout the independence processcreated understandable skepticismabout the integrity of the process.That skepticism intensified when, onthe eve of implementation, pressurefrom several Western countries, including the United States, forcedUnited Nations Secretary-GeneralJavier Perez de Cuellar to reduce thenumber of UNTAG peacekeepingtroops from 7,500 to 4,650 as a costcutting measure. That decision trou-

bled independent observers andmore importantly-fed the perceptionheld by Namibians, who had grownwary of South Africa's sincerity, thatthe resources of the United Nationswould be inadequate to keep in checkany attempts by South Africa tosubvert the process.

Because of their serious reservationsabout the prospect of "free and fair"elections in Namibia under SouthAfrican administration, Namibian


South African Defence Force troops leave Namibia

•••

leaders called on the internationalcommunity to send monitors toNamibia to observe the independenceprocess.

The Southern Africa Project of theLawyers' Committee for Civil RightsUnder Law heeded their call byestablishing the Commission onIndependence for Namibia to monitorthe seven-month process leading upto the elections and the post-electionperiod leading to independence.

The Commission

The Commission, a bipartisangroup of 31 prestigious Americans,including members of Congress,former Cabinet members, lawyers,religious leaders, foundation executives and educators, was co-chairedby Senator Paul Simon, RepresentativeCharles Rangel and Yale law professorBurke Marshall.

The goals of the Commission wereto increase international scrutiny ofthe election process in order to enhance the potential for free and fairelections, to monitor electoral lawsand procedures to ensure fairness, tomake recommendations where lawsor procedures would inhibit Namibians from exercising their newlyacquired voting rights and to enlighten current and future UnitedStates policy toward Namibia, SouthAfrica and the region by providingaccurate information regarding theelection and the transition to independence.

Commission delegations made threeone-week visits to Namibia to gatherinformation first-hand about thepreparations for the elections. Eachdelegation traveled widely in Namibiaand consulted with representatives ofthe United Nations and the SouthAfrican administration, political parties, lawyers, judges, farmers, tradeunionists and students. Their findingswere reported to the State Department, members of Congress and thediplomatic community. The findingsof the Commissioners were alsopublished in report form and receivedprominent coverage in the Namibianand American press.

lJlwyers' Committee for Civil Rights Under lJlw

The second major element of theCommission was the Namibia-basedstaff. The Commission was the onlynon-governmental group to maintaina staff in Namibia to monitor theyear-long independence process. Twostaff members were located inNamibia's capital, Windhoek. Twoadditional staff members workedthrough the Human Rights Centre, afree legal assistance and human rightsmonitoring service founded byNamibian lawyers, located inOngwediva, in northern Namibia,where about half of the Namibianpopulation lives.

The staff coordinated the monitoring functions of the Commission.Relying on the network of contactsdeveloped over the 23-year periodthat the Lawyers' Committee hasworked in Namibia, the staff monitored compliance with Resolution 435and documented incidents of human

John Liebenberg

rights abuses and intimidation. Thestaff also prepared a weekly briefingpaper on events which were relevantto the transition process. These reportswere distributed to members of Congress, representatives at the UnitedNations, South African officials inNamibia and other organizations. Thedistribution list covered more than1,000 individuals and groups.

In addition to the efforts of theCommission, the Southern AfricaProject prepared a series of briefingpapers which critiqued a number ofserious obstacles to a peaceful transition process and free and fair elections. Topics covered in these papersincluded the discriminatory andrepressive laws in Namibia whichwere to be repealed prior to elections,the cease-fire violations that occurredon April 1st, the electoral laws andthe constituent assembly laws. Inaddition to briefing papers, the Project

9

UN Special Representative Ahtisaari reviews UNTAG Police Monitors

•••UN Photo 156734/M. Grant

submitted to the AdministratorGeneral and the Special Representative comments on the drafts of theregistration, election and constituentassembly laws.

Resolution 435

The cornerstone of the UnitedNations independence plan forNamibia was "free elections for thewhole of Namibia as one politicalentity." Resolution 435 listed anumber of key conditions and requirements for free and fair elections.They were: the cessation of "hostileacts" by all parties; the repeal of alldiscriminatory and repressive lawswhich could jeopardize free and fairelections; the release of all politicalprisoners and detainees held by bothSouth Africa and SWAPO; and therepatriation of all Namibian refugeesand exiles. Specific provisions called

10

for the restriction of South Africanand SWAPO armed forces to base, thewithdrawal, before elections, of all but1,500 South African troops and thedemobilization of citizen forces andparamilitary groups, along with thedismantling of their command structures. Throughout the transitionperiod, full freedom of speech, assembly, movement and press were tobe guaranteed.

The entire transition to independencewas to take place under the "supervision and control" of the United Nations.The United Nations Special Representative for Namibia, Mr. Martti Ahtisaari,was responsible for determiningwhether the implementation of theelectoral process, including the properregistration of voters and the adoptionof appropriate electoral procedures, wasconducted satisfactorily In addition, theSpecial Representative was required totake steps to "guarantee against the

possibility of intimidation or interference with the electoral process from anyquarter." Finally, the election resultswere to be deemed valid only after theprocess had been certified by the Special Representative as free and fair.

Problems During the Transition

Throughout the implementation ofthe settlement plan for Namibia,major problems threatened the integrity of the elections. On April 1st,when implementation began, it wasreported that approximately 1,400heavily-armed combatants fromSWAPO's military wing, the People'sLiberation Army of Namibia (PLAN),crossed the border from Angola intoNamibia in apparent violation ofcease-fire agreements. South Africainterpreted the crossing as a hostileact, while SWAPO contended that thecrossing was for the purpose of sur-

Uiwyers' Committee for Civil Rights Under Uiw

•••SWAPO combatants dropped into mass grave after April 1st fighting

rendering in good faith to the UnitedNations.

The protracted debate in the Security Council over the reduction ofUNTAG's force strength gave theUnited Nations only four weeks todeploy its 4,650 person military forcebefore implementation was to begin.Thus, less than 1,000 UNTAG soldierswere in place in Namibia on April 1st.Additionally, these soldiers werehampered by a shortage of vehiclesand communications equipment.

Relying mainly on South Africanintelligence reports, and prior to dispatching its own investigative team oracquiring any independent verificationof the facts, UNTAG officials respondedto South African pressure by authorizing several units of the South AfricanDefence and South West Africa Territory Forces to remobilize and engagethe PLAN combatants.

In the following days, the worstfighting of the entire 23-year war tookplace. Within a week, nearly 300PLAN combatants had been killed bySouth African forces. Eyewitnessesconfinned reports that the PLANcombatants were unprepared forbattle and, indeed, were eager to handthemselves over to UNTAG officials.Later photographic and forensicevidence led to the conclusion thatmany were shot in the face withsmall-caliber weapons, "executionstyle," after surrendering.

Dr. Nestor Shivute, Superintendentat Oshakati State Hospital, the largestmedical facility in northern Namibia,summed up the feelings of a largenumber of Namibians about theevents initiated on April 1st:

It was terrible. In fact, it was notjust terrible. We were devastated bythe killing. Everyone was so happy,Res. 435 had been implemented, theUnited Nations was here in thecountry ... and then all of asudden we were back at war. I justcouldn't accept how these soldiersI'm talking now about our relatives-could just be killed like thatand nothing done. I mean, theUnited Nations, which was here toprotect us, was just standingaround and letting these fellows bemassacred . .. that's what it was.

I1Jwyers' Committee for Civil Rights Under I1Jw

And, I'm telling you, we hated theUnited Nations at that time. Peoplewere asking: 'Is this the 435 wewere waiting for so long?'

The primary contact with the apartheid system for the vast majority ofNamibians was their daily encounterswith a complicated network of repressive and discriminatory laws. As required by Res. 435, South Africa'scolonial governor in Namibia, theAdrninistrator-General, repealed asignificant number of these laws. Forthe first time in ten years, for example,

residents in northern Namibia couldmove about freely without fear of beingshot at or arrested for violating thedusk-to-dawn curfew previously imposed.. Many other security laws wererepealed, including the infamous Terrorism Act which permitted indefinitedetention without trial.

However, the proclamation repealing discriminatory laws left intactProclamation AG 8 of 1980, whichestablished apartheid structures inNamibia. Proclamation AG 8 dividedNamibia into eleven semiautonomous

John Liebenberg

11

"homelands" along ethnic and raciallines. The "white area" comprised 60percent of the total land area andincluded most of the grazing andmineral-rich lands. For most of theperiod of South African occupation,Namibia's Africans and colouredswere forbidden to own land in the"white area" or to occupy it except asservants of whites. The most egregious effect of the "homelands" policywas that it forced the creation andmaintenance of eleven separate governing administrations. The accumulation of wealth in the white administration-nearly double the revenue ofall the other authorities combinedleft the majority of the populationwith inferior health, education andsocial services.

While South Africa waged its 23-yearlong '10w intensity" war againstSWAPO combatants it classified as"terrorists," succeeding South Africancontrolled governments in Namibiafound it politically expedient to allowSWAPO's internal political wing tooperate as a party However, the Prohibition and Notification of Meetings Actof 1981 prescribed restrictive rules forpublic gatherings so severe as to virtually deny freedom of assembly Whenthis law was repealed under Res. 435,the Administrator-General immediatelyintroduced the Public Gathering Act,which had many of the same effects asthe earlier law. The new Act, for example, required three days' notificationfor any public gathering. Permission tohold meetings was granted not by amagistrate but by the police, and absentsuch permission the police could forcibly break up any gathering. During thetransition period, the Act was mostfrequently applied against South Africa's political opponents, mainlySWAPO, frustrating their attempts toplan and hold political rallies.

One of the steps required by Res.435 prior to the elections was therelease of political prisoners held byboth sides. It became clear that prisoners on both sides had been subjected to torture and inhuman treatment during incarceration. Althoughsome political prisoners were releasedby SWAPO and South Africa duringthe early stages of the transition

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Homestead owner sUnJeJJs damages afterclashes between Koevoet and 5WAPOcombatants John Liebenberg

•••

The Hhomelands" policyforced the creation andmaintenance of elevenseparate governingadministrations

process, charges that both sides continued to hold prisoners persisted upto the election, despite a United Nations investigation of former SWAPOcamps in Angola and Zambia.

By all accounts, one of the mostsuccessful-and one of the mostpoignant-aspects of the entire Resolution 435 process was the repatriationof some 41,000 Namibian refugeesand exiles. Under the joint coordination of the United Nations HighCommissioner for Refugees (UNHCR)and the Council of Churches inNamibia (CCN), the repatriation wasa massive task, in fact, the largest everundertaken by the UNHCR. Reception camps had to be built; as many

as five daily planeloads of refugeesreturning from Angola and othercountries had to be coordinated; foodand clothing had to be distributed.Because many of the "returnees" hadoriginally fled from South Africanpersecution, logistical and securityarrangements were particularly sensitive. The South African administration's reluctance to pass an adequateamnesty law as well as to repealexisting discriminatory and repressivelaws delayed repatriation by about amonth. In addition, the resettlementprocess was occasionally marred by

The repatriation was amassive task, the largestever undertaken by theUNHCR

acts of violence and intimidation.But it was the emotional impact of

Namibians seeing parents, brothers,sisters, sons and daughters exiled 12,IS, perhaps 20 or 25 years that movedmany observers to tears. Each daythat the "returnees" arrived, literallythousands of Namibians would crowdthe airports or gather at the receptioncamps to hunt for relatives or friends.Wearing their gayest clothing,weeping, cheering, ululating ecstatically, it often seemed they just neededto see a "returnee," even a stranger, tobe convinced their own people werereally coming home.

Along with the joy, however, waswhat, perhaps, will remain as thesomber legacy of the South Africanoccupation, the realization that yearsof relationships, sharing and opportunities have been forever lost:

I met myoId friends but thingswere not the same. I don't know,maybe I thought that twelve yearswouldn't make much of a difference. .. But they are so different; theyhave built up their own friendshipcircles in the meantime, they havebecome responsible family members,parents, setting up house . .. Andyou can't just talk about those dayswhen you were kids. I hope thatnow the elections are over maybethere will be room for being at leasta child again, and just relive those

LaWlJers' Committee for Civil Rights Under Law

.'

Dobra Reception Centre for Namibians returning from exile

•••

old days. I think I need that tobelieve that I am home. [formerNamibian exile]

By far the major problem in implementing the United Nations settlement plan for Namibia was the recurrent incidents of intimidation and

physical violence. Beatings, stabbingsand shootings, as well as the terrorization of entire villages continued,especially in the remote rural areasdistant from UNTAG's scrutiny. Mostof the violence was attributed toKoevoet, the ruthless South Africancounterinsurgency unit that wasincorporated into the police forcesbefore April 1st, and to disbandedmembers of the South West AfricaTerritory Force (SWATF), particularlythe 101 Battalion in Ovamboland andthe 202 Battalion in Kavangoland.

Created as a paramilitary fightingunit which employed unconventionalmethods of warfare, Koevoet[Afrikaans for "crowbar"] was theprimary unit engaged in "search anddestroy" missions against SWAPOcombatants. Rigorously trained, itsmethods were devastatingly effective.A primary goal of Koevoet's militarystrategy was to generate terror amongthose who were perceived as beingpro-SWAPO. During the war years,Koevoet m~mbers were frequently


charged and convicted in court ofassaults, destruction of property, rape,torture and murder. However, insteadof disbanding and disarming Koevoet,as required by Resolution 435, SouthAfrica, prior to April 1st, incorporatedapproximately 2,000 of the group into

UN Photo 156759/M. Grant

The major problem inimplementing the UnitedNations settlement planfor Namibia was therecurrent incidents ofintimidation and physicalviolence

the South West Africa Police(SWAPOL). This action exploited aprovision of the Resolution whichgave the "existing police" primaryresponsibility, during the transition, tomaintain law and order.

It was quite obvious to anyone whohas had any contact and dealingswith Koevoet that it's not really apolice unit; it is a paramilitarycounterinsurgency group. [H]avingpeople like that in the field createdserious problems for the process ...I think it didn't really reflect wellon South Africa'S good faith . ..[A]nd, in fact, when you actually

watched and observed the operationson the ground, it became apparentthat [KoevoetJ was involved farbeyond normal police duties ... andthat it was victimizing people forpolitical views and acting in amanner which went way beyondlaw and order functions ...[Namibian human rights lawyer]

Repeated calls by the United Nations and international observers toconfine to base and disband Koevoetwent largely unheeded by theAdministrator-General. The SouthAfrican military forces would periodically warn of impending "invasions"by PLAN combatants, or "discover'hidden arms caches. Many observersconsidered these claims to be ruses tojustify the continued deployment ofKoevoet.

Concerns about Koevoet activities ledto fact-finding visits by representatives

•••Namibians at the Dobra Reception Centre


13

from the United Nations SecurityCouncil and, later, by United NationsSecretary-General Perez de Cuellar.Intense lobbying at United NationsHeadquarters in New York, particularlyby several African states, finally resulted in the passage on August 29th ofSecurity Council Resolution 640, which,inter alia, specifically demanded Koevoet's disbandment. When a hurrieddemobilization was eventually carriedout, just a month before the elections,angry ex-Koevoet soldiers went on abloody two-week rampage in northernNamibia. Many of these ex-Koevoetmembers were by then on the payrollas party operatives of the DemocraticTumhalle Alliance (DTA), one of theparties favored by South Africa in theelections.

The degree of violence during thattime was reported by a United Nationsinformation officer who told the Commission on Independence for Namibiathat over the September 3Oth-Dctober1st weekend literally hundreds ofviolent incidents occurred across Ovamboland. Every single incident had,reportedly, been initiated by DTAsupporters, the majority of whom wereex-Koevoet members. These incidentsincluded: the fire-bombing of villagers'homes; a phosphorus grenade attack ona secondary school in which five students were seriously injured and aschool guard murdered; an attack on apublic marketplace by over 50 personsarmed with knives, clubs, machetes,spears and guns; and the shooting of arocket mortar and a live flare at unarmed UNTAG personnel. Even whenthere was no physical violence, threatsof planned attacks, spread by theex-Koevoet soldiers themselves, createda pervasive atmosphere of fear andterror that continued right through theelections.

Upon disbandment, many formerSWATF soldiers became active as"organizers" in the DTA. These soldiersremained on the South African administration's payroll until the end of theelectoral process. They reportedly stillreceived instructions from some of theirformer commanders, and retainedaccess to assault rifles, hand grenadesand mortar shells, weapons they hadused during the war. During a five-day

period in August, the Human RightsCentre, a legal advice and human rightsmonitoring office in northern Namibia,reported on nine cases of assault carriedout by persons whose clothing identified them as DTA members:

• A ten year old child was shotwith an arrow in the face at

Koevoet disbands in October 1989

•••

Oshakati township after singingfreedom songs with her friend.(August 19th)

• Approximately 11 people wereassaulted by DTA members atOmulamba, Oshikuku. They werebeaten with sjamboks. Three of thepeople were hospitalized. (August 20th)

• A man was shot in the leg andankle by DTA supporters inOshikuku. (August 21st)

• A young boy of 18 was assaulted

at Endola by five men wearingDTA T-shirts and caps. He washospitalized with multiple injuries on his back and face. (August22nd)

• A "returnee," 26 years old, wasassaulted by DTA members onhis way to his house. He was hit

with the wooden handle of anaxe in the face and neck. He washospitalized. (August 22nd)

• Several people, including a 70year old man, were assaulted byDTA members at Omungwelumewith sjamboks and knives. The oldman was hospitalized along witha young girl who was stabbedtwice between the shoulders.(August 23rd)

• A man was abducted from hisshop in Ombalantu by DTA

14 Lawyers' Committee for Civil Rights Under Law

people, taken into the bush,assaulted and shot in thestomach. (August 23rd)

• Several PeOple [number unknown]were assaulted by DTA membersat Okatana. (August 24th)

• Four "returnees" were assaulted byDTA members at Omungwelume.

John Liebenberg

•••

One was shot in the shoulder. Aman was also hit in the face whenhe was inquiring why his friendwas shot. (August 24th)

Assassinations, unexplained killingsand death threats added to the atmosphere of intimidation during the independence process. Petrus Joseph, anex-Koevoet member, who, in early 1989,had resigned and testified against thecounterinsurgency unit in a courtproceeding, was killed in suspiciouscircumstances by Koevoet members


integrated into the police force. Thepolice claimed that Mr. Joseph waskilled in self-defense, despite credibleevidence to the contrary. It took a greatdeal of public criticism, including areport by the Commission on Independence for Namibia, before the authorities could be prodded into a deeperinvestigation. Earlier this year it waslearned that an inquest court hadconcluded that there was insufficientevidence to hold the police liable forculpable homicide.

On August 10th, the UNTAG regional office at Outjo was attackedand substantially damaged by gunfireand hand grenades. A Namibiansecurity guard was killed during theattack. Subsequently, three whitemales were arrested and charged withthe attack. However, in December,with the aid of two accomplices, thethree suspects escaped police custody,murdering a police constable in theprocess. The suspects remain at large.

In September, a prominent whiteSWAPO member, Mr. Anton Lubowski,was assassinated in front of his homejust before the return from exile ofSWAPO President Sam Nujoma. Although a susPect was taken into custody just a day later, the investigationremains unresolved. In the days following Mr. Lubowski's death, otherleading liberals received repeated deaththreats. Among them were DavidSmuts, the director of the Legal Assistance Centre, the only public interestlaw firm in Namibia and Gwen Lister,editor of the influential independentnewspaper The Namibian.

Problems WithThe Electoral Process

Throughout the independenceprocess, the Commission on Independence for Namibia called attention toproblems related to more technicalaspects of the electoral process itself.

There were, for example, problemsin the administration of the registration process. Many of these were"technical" flaws in the completion ofregistration cards: misspelled namesand addresses, failure to affix theofficial stamp, thumbprints improperly taken. There was confusion about

what constituted acceptable proof ofcitizenship and young Namibianswith proper identifying documentswere sometimes rejected simplybecause they looked younger than 18.Persistent complaints led to a decisionto extend the registration period byone week. At the end of that period itwas believed that virtually all eligiblevoters had registered.

Many Namibians also objectedstrenuously to the provision in theregistration law which denied the

The Commission onIndependence for Namibiacalled attention toproblems related to theelectoral process

right to vote to certain Namibiansborn in Walvis Bay, an enclaveclaimed unilaterally by South Africa.The same law also allowed the registration of several thousand whitesresident in South Africa, most ofwhom were former civil servants,military personnel and their offspring.

Another significant problem wasbiased media coverage of the electoralprocess. Radio and television broadcasting in Namibia was controlled bya state monopoly, the South WestAfrica Broadcasting Corporation(SWABC). Radio-which throughoutthe country is broadcast in the majorethnic languages-is the primarysource of information for the 60 percent of Namibians who are illiterate,as it is for the 30 percent who live invirtual isolation on white-ownedfarms. Thus, concern over thisproblem was particularly acute.

Throughout the electoral process,there were persistent, documentedreports of blatant SWABC bias. Apro-independence group, NamibiaPeace Plan 435, made up of leadingbusinessmen and professionals, monitored the SWABC radio and televisionbroadcasts at various points throughoutthe transition period. They concludedthat SWABC's bias was evident in tworesPects: denial of equal access tobroadcast media for all parties andbiased content in news bulletins, the

15

•••

Namibian registers to voteUN Photo 156786/M. Grant

"central task" of the SR was to "makesure that conditions are establishedwhich will allow a free and fair electoral process."

Moreover, while it was true thatunder Resolution 435 theAdministrator-General (AG) hadprimary responsibility for maintaininglaw and order through the existingpolice forces, the SR was to "ensure"their good conduct and "take necessary action to ensure their suitability

Ltiwyers' Committee for Civil Rights Under Ltiw


•••

Role of the United Nations

fingerprint experts working six-dayweeks more than a month just toverify the expected number of thumbprints. The draft law also excludedpolitical parties from vital pollwatching functions.

Although many of the more seriousflaws in the draft law were ultimatelycorrected, the final election law waspromulgated less than three weeksbefore balloting began. This was nominor matter. Voter education could notbegin until the voting procedures werefinalized and published as the electionlaw. The circumstances of this electionmade ample time for voter education acritical requirement. The majority ofNamibians had never participated in anelection before, some 60 percent countrywide and as much as 70 percent inthe far-flung rural areas could not readand perhaps as many spoke only theirethnic tongue. A complicated ballotingprocedure further exacerbated voterdifficulties.

Kenyan UNTAG brigade arrives in Namibia

Resolution 435 provided thatNamibia's transition to independencewould take place under the "supervision and control" of the United Nations. In addition to the requirementthat the Special Representative (SR)was to satisfy himself at each stage asto the fairness and appropriateness ofall measures affecting the politicalprocess before they took effect, the

effect of which was to favor the statusquo and discredit SWAPO. The lion'sshare of air time was devoted to favorable coverage of the activities of theSouth African Administrator-Generaland, secondly, to the DTA party.

The problem of access to voters alsosurfaced with respect to Namibia's farmworkers who represent 30 percent ofthe work force. Employed on largewhite-owned farms, these workers'lives are almost totally dependent ontheir white employers. Access by partyagents to these farms, which could onlybe obtailled from the farm-owner, wasinconsistently and arbitrarily granted.During the polling, there were reportsthat farmers were occasionally allowedto assist their illiterate workers or toexplain the ballot to them. Someworkers were allegedly threatened withdismissal if they voted for the "wrong"party.

After needless and damaging delays by South African governmentofficials in the production of theelection law, the draft law publishedin July contained serious flaws whichwould have made free elections impossible and opened the door towidespread fraud. Secrecy of theballot was violated by two separateprovisions in the draft proclamation.First, ballots were to be placed insealed numbered envelopes whichcould be traced to individual voters.Second, the approximately 60 percentof illiterate as well as handicappedvoters who needed help in votingcould be assisted only by governmentelection officials.

The South African draft also proposed the transportation of ballotboxes from all parts of the country toWindhoek for counting and established a complicated and unwieldyverification procedure. The processentailed matching signatures orthumb prints taken from the 700,000plus voters during registration withthe signatures or thumb prints thatwould be given during the election.Although the Chief Election Officerestimated this process would take nomore than two weeks, FBI expertsconsulted by the Commission onIndependence for Namibia estimatedthat it would take a battery of 50

16

reviewed their reports. UNTAG policemonitors in the field had no authorityto compel action when, for example,SWAPOL refused to investigate serious crimes. Understaffing and inadequate equipment added to the disadvantages of the UNTAG police

monitors in relation to SWAPOL.Namibian residents who had suf

fered from Koevoet/SWAPOL intimidation in the past expected UNTAGto protect them and punish theiroppressors. Instead, they wereshocked and angry when told thatthey must make their complaintsabout SWAPOL to SWAPOL. As oneOvambo man stated: "If you arebitten by a snake, you don't go backto the snake for a cure."

All these factors led early on to awidespread lack of confidence in theUnited Nations among the Namibianpopulation, particularly in the northof the country. This demoralizationled, in tum, to significantly reducedfaith that a free and fair electoralprocess would take place.

Nevertheless, despite severe logisticalrestrictions, limited resources, intimidation, physical attacks and sensitivepolitical obstacles, many UNTAGmembers displayed a consistent commitment and idealism that was commendable. Over the course of the

its decision to negotiate a StatusAgreement with South Africa whichrequired all entering UNTAG civiliansto apply for a visa from South Africa,an illegal occupant in a territory forwhich the United Nations had legalresponsibility. Indeed, South Africa

The draft law containedserious flaws which wouldhave made free electionsimpossible

UNTAG and Koevoet police monitoring SWAPO rally

•••

went so far as to delay and deny visasto certain United Nations personnel.This decision was at variance with theInternational Court of Justice's 1971Advisory Opinion that South Africa'soccupation of Namibia was illegal andthat the United Nations was the dejure authority in the territory.

The relationship betw.een theUNTAG police and the South African

~ controlled police also generated confu() sion and frustration among Narnibi-~ ans. While South West Africa Police5 (SWAPOL), including former Koevoet[;) soldiers not trained in police proce-......8 dures, had primary responsibility to£ investigate complaints, UNTAG,Z interpreting its authority restrictively::J as not including investigations, only

UN Special Representative Ahtisaari declareselections free and fair

•••

for continued employment" duringthe transition period. In case of disputes between the SR and the AG,Resolution 435 gave determinativeauthority to the SR.

Unfortunately, throughout the periodof renewed hostilities begun on April1st and immediately following, a seriesof critical and contentious issues between United Nations and governmentofficials were resolved in a mannerwhich threw into question the functioning in practice of the relationshipestablished by Resolution 435. Theseconflicts occurred over: the release ofpolitical prisoners; the repeal of discriminatory and repressive legislation; thescope of amnesty laws for returningexiles; and the continued presence ofKoevoet in the police. Overall, theseconflicts and the nature of their resolutions fostered a perception that theUnited Nations posture had becomeone of solely reacting to governmentinitiatives rather than controlling thesettlement process itself.

A visiting British delegation statedpublicly in early June 1989 that"UNTAG appears to be negotiatingwith the South Africans instead ofsupervising the election process ... Itis essential that the United Nationsnot only stand firm but be seen tostand firm." Doubts persistedthroughout as to whether, if necessary,the SR would use his primary instrument of authority under Resolution435, namely refusal to certify specificarrangements because of their threatto free and fair elections.

The overall perception of limitedUNTAG authority was not helped by

Lawyers' Committee for Civil Rights Under Law 17

Commission member George McGovern talks with children in Katutura township

•••

implementation process, local fears andmistrust diminished. Through a combination of professionalism, creativity andsheer hard work, many UNTAG fieldpersonnel eventually established asignificant rapport with the communities they served.

Election Results

The voter turnout was impressive.Nearly 97 percent of the more than700,000 registered voters cast theirballots. The South West Africa People'sOrganisation (SWAPO), which had ledthe independence struggle, won a clearmajority with 57 percent of the vote.

SWAPO took 41 of the 72 seats in thenew Constituent Assembly, while theirmain challenger, the South Africa-

Nearly 97 percent of themore than 700,000registered voters cast theirballots

backed Democratic Turnhalle Alliance(DTA) won 21 seats, and five smallerparties split the rest. Although SWAPOfailed to get the two-thirds majoritynecessary to control the constitutionmaking process, it was generally believed that the result gave a greaternumber of the parties a stake in thenew government and encouraged thespirit of cooperation displayed amongAssembly members.

Commission members Elliot Richardson andFather Theodore Hesburgh meet South Africanpolice officer Nick Allen

18

In general, observers felt that thepolling went smoothly, that violence waslimited and that all who wished to votewere able to do so. Some serious problems did exist, however. In Ovamboland,the SWAPO stronghold, widespreadshortages of supplies-ballots, ballotboxes, etc.--eaused some 30 pollingstations to close down for periods of

several hours to entire days. Someworkers, particularly domestic workers,were fired for taking time off to vote.There was an aborted attempt to stealthree ballot boxes and a number of otherballot boxes arrived at the centralcounting sites with broken seals or noseals at all. And at critical points in thecounting process, power failures plungedcertain stations into darkness, raisingconcems and suspicions.

Namibian community leader Lindi Kazombaue(left) meets with Commission members (left toright) Eliwbeth Landis, George McGovern,John Douglas, Anthony Lake, Robert Kapp

John Liebenberg

However, all parties accepted theelection results as a valid basis uponwhich to form the new government ofan independent Namibia. Credit for thisis in no small part attributable to thededicated efforts of the United Nations,the Namibian churches and independent observers. Most important was thedetermination of ordinary Namibians to

overcome any obstacle to the achievement of their long-delayed freedom andindependence.

Our Contribution

The Lawyers' Committee for CivilRights Under Law, through the Commission on Independence for Namibia,was the most prominent of the nongovernmental observer groups and the

Commission members Thomas Winship andJohn Douglas meet with communityleaders Nick Allen


only American group that had a continuous presence throughout the year-longprocess leading to independence.During the five days of balloting,Commission staff members coordinatedtheir efforts with a contingent ofNamibian and South African lawyersand paralegals. In collaboration withthem, Commission staff were able tomonitor the balloting at over 25 pollingstations, some so remote that they couldonly be reached by four-wheel drivevehicles.

Commissioners Elliot Richardson, DonaldMcHenry and John Douglas Nick Allen

•••In assessing the work of the Com

mission, Congressman Howard Wolpe(D-MI), a member of the Commission,stated:

The role of the Commission wasindispensable to the final outcome ofa free and fair election. There weretwo problems: It was clear thatSouth Africa was doing everythingpossible to control and manipulatethe outcome of the election. On the

UNTAG police commander with Commissionmember Elliot Richardson Nick Allen


other hand, it was equally clear thatthe United Nations did not havestrong enforcement powers tocompel an orderly process. So theonly recourse that those of us hadthat were interested in genuinelyfree and fair elections was to try tohighlight the abuses that were

The role of theCommission wasindispensable to the finaloutcome of a free and fairelection.

occurring; to expose the SouthAfrican manipulation of the independence process.

The role of the Commission wasenormously helpful in getting theinternational community to understand more clearly what was beingproposed by the South AfricanGovernment as the rules of the gameand the ways in which that manipulation was occurring. We helped toreinforce our own government andthe United Nations in adopting amore forceful stance vis-a-vis theSouth African administration.

The Constitution

"We [were], therefore, determined toadopt a Constitution which expresses for ourselves and our child-

Commission member Donald McHenry, right,greets UN Special Representative Ahtisaariand UN Deputy Representative JosephLegwaila John Liebenberg

ren our resolve to cherish andprotect the gains of our longstruggle for national independence."[Constituent Assembly ChairmanRage Geingobl

On February 9th, 1990, exactlyeighty days after its first meeting onNovember 21st, the 72-member Constituent Assembly adopted by consensus the Constitution for the Re-

Commission members Nathaniel Jones, JohnDouglas, Galer Butcher, Henry Richardson

John Liebenberg

•••public of Namibia. After weeks ofintense debate characterized by aspirit of compromise, the final document expresses a strong commitmentto democratic principles and providesfor a multi-party system. Judiciallyenforceable individual freedoms areguaranteed in a comprehensive bill ofrights. Entrenched as the "supremelaw of the land," the Constitutionmay be amended only by a two-thirds

Commission members Howard Wolpe andThomas Winship Nick Allen

19

I.

Reconciliation

new Constitution, pointing out that itcontains the structural framework totransform Namibia into a modeldemocracy.

Colonial occupation and the war forindependence left bitter memories forall Namibians. Nearly everyNamibian was directly affected by thebrutal South African military occupation of the country. South Africa'scooptation of traditional leaders, theuse of blacks by South Africa as policeand as soldiers in the counterinsurgency unit known as Koevoet and inthe South West Africa Territory Forcedivided the black community, whileapartheid structures created artificialbarriers between ethnic groups andbetween whites and blacks. For yearsSouth African propaganda had terrified white Namibians with tales of


elected universally to a five-year termof office. The legislative branch iscomposed of a bicameral Parliament:a National Assembly with authority to

Special provisions of theConstitution target theevils inflicted by apartheid.

•••

pass, amend and revoke laws, and aNational Council which will reviewall laws passed by the Assembly. TheConstitution also makes provision fora Council of Traditional Leaderswhose makeup and powers are to bedetermined by Parliament, and anindependent judiciary.

As President Nujoma cautioned onthe occasion of its adoption, the Constitution is "not a perfect document."However, many local and international commentators have praised the

, .-Voter casts her ballot

majority of both houses of the legislature or by a two-thirds majority in apopular referendum.

Fundamental rights are protected inNamibia's Constitution, includingmany which the state may not suspend or erode under any circumstances. These include: freedom ofthought, religion, speech and press, aswell as the right to peaceful association, to life, to equality before the law,to a fair and speedy trial with legalrepresentation, to administrativejustice, to equality in marriage, todivorce and, without impinging on"the rights of others or the nationalinterest," to practice any language andculture. Other fundamental rightsfor example the right to privacy, towithhold labor without criminalpenalty, to freedom of movement-areguaranteed subject to limitation by thelegislature on certain grounds.

After concern was expressedwidely, including by the Commission,early draft provisions which allowedthe President to decree preventativedetention without trial and for courtjudgments to be given in secret wereremoved. However, "for reasons ofmorals, the public order or nationalsecurity," court proceedings may beconducted in secret. The Presidentmay also "suspend" the application oflaw or of certain fundamental freedoms in the event of a declaration ofa State of Emergency or of MartialLaw. Either declaration will be validonly if approved by a two-thirds voteof the National Assembly. States ofEmergency must be approved within14 days and Martial Law within a"reasonable time."

Special provisions of the Constitution target the evils inflicted by apartheid. Racial discrimination and thedeath penalty, cruel and inhumantreatment, torture, child cruelty andslavery are prohibited, while affirmative action programs to eradicate thevestiges of apartheid are encouraged.Twelve non-binding principles areintended to guide government policy.These deal in general with the areasof health, education, women's rights,jobs and the economy.

The Constitution establishes asHead of State an executive president,

20

the violent retribution that wouldfollow if SWAPO ever came to political power. And, evidence thatSWAPO had mistreated, and in somecases tortured, its detainees shocked

Nearly every Namibianwas directly affected bythe brutal South Africanmilitary occupation of thecountry.

Namibians and international observers and raised questions about thefuture Namibian government.

Yet, unlike the situation in countriessuch as Argentina, where the victimsof brutal repression have called forretribution and punishment,Namibian society seems largely com-

mitted to reconciliation and forgiveness. The SWAPO leadership returnednot crying vengeance but sounding apolicy of national healing. SWAPOmembers, they point out, havebrothers and cousins who were inKoevoet, and many Namibians, theyrealize, cooperated with the government mainly out of fear. SWAPO hasalso assured the white communitythat all Namibians have a role to playin the task of reconstruction and thattheir physical and economic securitywill not be threatened.

The Council of Churches inNamibia issued a statement whichaptly voices the concerns and hopesof many Namibians:

We are united in our commonconcern for and love for our peopleparticularly now in the wake of overa century of colonialism andtwenty-three years of the costly

•••

sacrifices occasioned by war in ourland. We have ... expressed ourselves as totally opposed to theabuse of human rights by whoeverand for whatever reasons . .. [But],

The time has now come fornational healing,reconciliation and unity

aware of the costly loss of manylives and the great pain suffered byNamibians in the cause for ourliberation, we are also aware thatmany of the victims of this viciouscycle of wars were innocent and thetime has now come for us all tounite to bring about nationalhealing, reconciliation and unity . ..[W]e believe that upon this foundation we can together build a newand vital nation.

John Liebenberg

Children wave the new Namibian flag

The Future

Even after independence, seriousobstacles remain for the new government. South Africa has mortgagedNamibia's economic future. ThePretoria regime still retains control ofWalvis Bay, Namibia's only economically viable port, claiming it under aseparate colonial title. Namibia's railand road links lie entirely in thecontrol of South Africa. A road whichonce connected Namibia to itsnorthern neighbor Angola has beenout of commission since 1975, whenSouth African troops used it in theirinvasion of Angola.

Over the last year, the South African Government drastically cutsubsidies to Namibia's budget, from225 million Rand to 80 million, creating a budget squeeze that willpostpone development and infrastructure maintenance. In October, just amonth before the election, the

22

•••Administrator-General passed a lawthat could potentially drain theNamibian treasury of another 1.2billion Rand by privatizing the pension funds of South African civilservants in Namibia. South Africa isalso insisting that the new government repay the international debtincurred by South Africa primarily tofinance its military occupation ofNamibia.

On March 21st, when Namibiabecame independent, U.S. sanctionsagainst South Africa ceased to beapplicable to Namibia. But Namibia isstill far from real independence.Continuing pressure from PresidentBush and Congress are essential toprevent South Africa from sabotagingthe very independence it has allowedto begin. Indeed, the partnershipbegun with the international community nearly a century ago must berenewed as Namibians embark on anew struggle to transform their young

John Liebenberg

republic into a stable, economicallyprosperous and genuinely democraticsociety. It is vital that those who haveworked for Namibian independencedo not view their task as being completed. The role that the internationalcommunity must continue to playwas articulated by a Namibianlawyer:

The international community hashelped us so far to be given thatopportunity to determine our owndestiny and take our future into ourown hands. But that does not meanit's the end of their solidarity andtheir support.You must continue to be our liaisonin the days that lie ahead. [W]ewant you to be our checks andbalances ... We need as muchguidance as possible. ... [BienceGawanas, lawyer and former exile]


Over 100 heads of state, foreign ministers and other dignitaries attended Namibia's independence celebrations onIndependence Day, March 21st, 1990. The ceremonies began with a precision drill by the newly formed Namibiansecurity force honor guard (bottom photo), followed by speeches from United Nations Secretary-General Javier Perez deCuellar, South African State President F. W. de Klerk (top photo, right), and Namibian President Sam Nujoma (topphoto, center).

LaWljerS' Committee for Civil Rights Under Law 23

SOUTH AFRICA:THE FAILURE OF STATE POLICY

When Nelson Mandela walked outof jail on February 11th, 1990 toaddress his nation and the world, hismessage reflected less celebration atthe changes which have occurredrecently than concern at how farSouth Africa must still go before thegoals to which he has devoted hislife are achieved. The South AfricanGovernment has legalized antiapartheid organizations, but the State

Throughout the 1980s Pretoria'sstrategy was twofold. First, create afacade of reform to divert both domestic and international pressurewhile still preserving white privilege.The strategy included the introductionof segregated elections for Indian andcoloured Houses of Parliament, aswell as for black municipal and localauthorities. But, these largely cosmetic"reforms" were overwhelminglyrejected by these groups. And withthat rejection, the South African Government placed predominant relianceon its second strategy: brute force.

This militaristic response was formulated and executed from a newlycreated center of power within thegovernment: the Department of Military Intelligence and the SecurityBranch of the South African Policeacting through the National SecurityManagement System (NSMS). TheNSMS was a semi-secret body thatemerged to exercise unparalleledinfluence on state policy, capable ofoverriding even the Cabinet on crucialissues. The NSMS extended into aweb of hundreds of regional and localsubcommittees which monitored andcontrolled policy down to the township level.

The "Securocrats," as the militaristicestablishment came to be known,preferred the military option in bothforeign and domestic relations. Theuse of the military in the townships,

24

of Emergency and other statutes,such as the Internal Security Act, stillprohibit most forms of peacefulpolitical activity. Most political prisoners are still ineligible for release.And several thousand South Africanexiles cannot return home until thegovernment approves an amnestylaw. Still, Mandela's release and otherreforms represent a tacit admissionby the South African Government

Repressionon school and university campuses, aswell as in attacks against neighboringcountries, rose markedly during thepresidency of r.w. Botha. The militaryand police budgets burgeoned correspondingly.

In addition to formal repression bythe security forces, the South AfricanGovernment has permitted and supported informal or extra-legal meansof repression. This has involved theuse of violence by right-wing vigilantes against anti-apartheid activistsand the use of police/military deathsquads to assassinate governmentopponents within South Africa andabroad.

The State of Emergency

The South African Government'sresponse to the upsurge of townshipprotests and resistance from the earlyto middle 1980s was harsh: on June12th, 1986 it imposed a stringentnationwide State of Emergency whichprohibited most forms of protest,including mass funerals, politicalmeetings, calls for boycotts and stayaways and media coverage of unrest.State of Emergency laws gave thesecurity forces unprecedented powersto occupy the townships, to searchhomes and offices and to detainpeople indefinitely. The State of Emergency has been renewed every year

that its policies have failed.Three major factors account for the

changes which have taken place inSouth Africa: the ineffectiveness ofthe government's policy of repressingpolitical resistance; the growth andconsolidation of the anti-apartheidforces inside South Africa; and theimposition of additional internationalsanctions and other forms of externalpressure.

and many of its provisions becameharsher over time. It is still in place atthe time of this writing.

During 1988 and 1989, the SouthernAfrica Project financed 36 cases,defending against or challenging Stateof Emergency regulations.

After the first State of Emergencywas imposed in 1986, South Africancourts demonstrated a cautious willingness to challenge the expanding powerof the executive. Judges struck downregulations denying detainees access tolawyers, for example, and ordered therelease of detaineees when arrestingofficers exceeded their Emergencypowers. These successes were shortlived. Revisions in the 1987 Emergencyregulations closed most loopholes.Bereft of assistance from the courts,South African lawyers who representedState of Emergency detainees werereduced to challenging technicalitiesregarding detention procedures.

The stranglehold the successiveStates of Emergency have exerted onevery conceivable form of peacefulprotest was demonstrated by a decision handed down by the AppellateDivision of the South African Supreme Court in The Release MandelaCampaign and Others v. The State President and Others. The 1988 appeal,considered by many South Africanlawyers as the most significant challenge at the time to the breadth ofexecutive power conferred by the

l.J1wyers' Committee for Civil Rights Under l.J1w

•••Youth arrested during 1990 demonstration

Emergency regulations, joined twoapplications, OPSC & Black Sash v. TheState President and UOF & ReleaseMandela Campaign v. The State President, the former of which was fundedby the Southern Africa Project.

The State of Emergency regulationsdefined as "subversive statements" anarray of civil disobedience appeals suchas calls for work stayaways, school orconsumer boycotts and rent strikes.Over and above these defined categories, the Commissioner of Police wasgiven additional power to outlaw anyconduct which, solely in his view, couldbe considered "subversive." This provision in effect enabled the Commissionerof Police to rule on an ad hoc basis.

On April 10th, 1987, in response tohighly successful campaigns by the Freethe Children Alliance and the Detainees' Parents Support Committee,among others, protesting the excessivenumber of State of Emergency detentions, the Commissioner of Policepublished regulations which branded asunlawful any campaign calling for therelease of detainees or highlighting poordetention conditions. The applications

Uiwyers' Committee for Civil Rights Under Uiw

Afrapix/Eric Miller

sought to have these new regulationsnullified on two grounds: that thepower granted to the Commissionerwas invalid and/or that the regulationsthemselves were invalid.

A full bench of the Natal ProvincialDivision ruled in late April 1987 thatthe Commissioner of Police's powerwas invalid and the regulations promulgated by him must be declared nulland void. However, the decision wasoverturned by the Appellate Divisionon September 13th, 1988, in a judgmentthat surprised lawyers and sparkedsevere criticism from academics. According to the plaintiffs' lawyers, thejudgment appeared to signal an unwillingness on the part of the highest courtto entertain any challenges to the validity of security legislation.

In February 1988, under authorityof the second nationwide State ofEmergency, the South African Government banned 17 leading antiapartheid organizations and 18 individuals. The Minister of Law andOrder issued an order prohibiting theorganizations "from carrying on orperforming any activities whatsoever."

Technically, the organizations retainedtheir legal status, but under the termsof the government order their scopeof operations was limited to preservation of assets and bookkeeping. Theactivities of the Congress of SouthAfrican Trade Unions (COSATU) wererestricted to what the governmentdefined as "shop-floot' issues.

With support from the SouthernAfrica Project, the United DemocraticFront (UDF), COSATU, the Detainees'Parents Support Committee and theRelease Mandela Campaign institutedlegal proceedings challenging the banimposed on their activities by theEmergency regulations as vague andoverbroad. A second lawsuit financedby the Project challenged therestriction orders served on UDFPresident Archibald Gumede andothers. While the applications werepending, an earlier case, known as the"Media Regulations Case," whichraised legal issues similar to thosepresented in the cases challenging thebanning orders, was decided by SouthAfrica's highest court, the AppellateDivision of the Supreme Court. TheCourt's decision endorsed broadexecutive powers under the State ofEmergency. Because this decisionestablished a legal precedent bindingon all other South African courts, thelawyers representing the four organizations agreed that it was inadvisableto proceed with the cases.

During the first three States ofEmergency 0986-1989), over 50,000people were detained without trial. Atleast 10,000 of the detainees werechildren, many of whom were tortured in detention. As internationalpressure against the use of detentionmounted, the percentage of childdetainees dropped from a high of 34percent to around 10 percent, andthen the overall number of detaineesbegan to decline. In January andFebruary of 1989, many of the remaining detainees, some of whomhad been in detention since the firstmonths of the Emergency, sought tosecure their release by going on indefinite hunger strikes. Fearing international censure if detainees died whileon hunger strike, the State eventuallyreleased most detainees.

25

By the end of 1989 the number ofState of Emergency detainees fell toan average of under one hundred,while dropping to two dozen fordetainees held under Section 29 of theInternal Security Act. This notoriousSection authorizes indefinite detentionwithout charge or trial, and denies theright of access to lawyers, family orfriends. The detainee may be helduntil he or she has "satisfactorilyreplied to all questions" or until "nouseful purpose will be served by ...further detention."

During 1988 and 1989, the SouthernAfrica Project financed the legalrepresentation of over 1,150 detainees,including children, in prisons all overSouth Africa. During 1989, the Projectalso provided lawyers to hundreds ofdetainees on hunger strike.

During the first threeStates of Emergency, over50,000 people weredetained without trial

The Project also funded 37 cases inwhich individuals who were assaultedwhile in detention filed civil claimsagainst the government. The plaintiffsin those cases included children whowere assaulted, electro-shocked, orotherwise tortured while in detention.Police attempted to intimidate somedetainees into agreeing to work aspolice spies. Many were seriously hurt,suffering internal injuries, broken bones,even loss of the use of limbs.

Two cases funded by the Project,Investigation Into The Death of MichaelMoeng and Abram Moeng v. The Ministerof Police, arose out of the same event.Michael Moeng and three friendswere arrested in Hammanskraal,Bophuthatswana. His brother, Abram,was arrested at his home. They wereinterrogated by Bophuthatswanapolice about some stolen cars andassaulted. Both brothers were handedover to the South African Police.While being driven to Pretoria, thetwo were alternately locked in the cartrunk with sacks over their heads.Then they were taken to a house andtortured. Abram describes beingbound with blankets and rope before

26

being assaulted again. When it wasMichael's tum, Abram heard hisbrother screaming. Back in the car,Abram heard the police stranglingMichael in the back seat until hisbreathing could no longer be heard.

The brothers were rushed to ahospital. Abram was inspected by adoctor who recommended that he behospitalized. Instead, he was kept incustody until he was brought to court.There he learned for the first time thathis brother had died. Lawyers havefiled a civil suit for damages onAbram's behalf and are pressing foran inquest into Michael's death. Theproceedings on both cases are expected to continue well into 1990.

While detainees were able to securetheir release from prison by going onhunger strikes, those released were byno means free. Approximately 65percent of these detainees were placedunder restriction orders which madethem virtual prisoners in their ownhomes. The typical order required therestrictee to remain in his or herhouse from 6 p.m. to 6 a.m. and toreport to the police station at leastonce and often twice a day. The restrictee was usually barred fromgroups of more than a few people,from involvement with any antiapartheid organization, from contactswith the press and from the premisesof educational institutions.

Regular trips to police stations,besides being expensive, were dangerous because they made the restrictees' schedules predictable. Manyrestrictees were confined to housesfrom which they had fled after beingattacked by vigilantes. At least tworestrictees were assassinated. ChrisNtuli was killed on his return fromreporting to the police and EricGumede, whose representation wasfunded by the Southern Africa Project,was killed within a few days after hisrelease from detention under restriction orders. Gumede's family saw themake and color of his assassin's car,and believe that either police or localcommunity councillors were involved.

During 1989, over 600 activists wereunder restriction orders. While somewere unable to comply with theirorders, others deliberately defied

them. In August, several restricteesopenly challenged the government byspeaking at mass rallies they had beenforbidden to attend. Governmentprosecutions followed. The Projectfunded 37 legal challenges to restriction orders. In a few of the cases,restriction orders were lifted. In other

Police Lieutenant Rockman addresses illegal police

cases, lawyers were able to get therestriction orders amended. With theFebruary 2nd, 1990 announcement byState President de Klerk terminatingall restriction orders, it is expectedthat contravention charges will bedropped.

In order to enforce the State ofEmergency, the South African DefenceForce (SADF) and the South AfricanPolice were deployed in black township streets and schools. There were


frequent complaints of attacks by themilitary and police on townshipresidents.

In September 1989, strong criticismwas directed against the conduct ofSouth African riot police units whopatrol the black townships by anunlikely source. Lt. Gregory Rockman,

•••a South African policeman in theWestern Cape, who claimed to speakfor "hundreds of policemen," defiedpolice regulations by openly condemning his colleagues' "brutal,unprofessional conduct." TheSouthern Africa Project providedfunds to assist Rockman in challenging a "gag ordel" imposed bypolice officials, to help him defendagainst misconduct charges and tosupport a defamation suit brought by


Rockman against the South AfricaBroadcasting Corporation.

Lt. Rockman was on duty in Mitchell's Plain on September 5th whenschoolchildren conducted a peacefuldemonstration near the town center.Rockman described the gathering as"harmless," but, because of State of

Emergency restrictions, warned thegroup and gave them 20 minutes todisperse. Before the time expired, riotpolice arrived and stormed the crowd."There were innocent bystandersthere the police were hitting like mad.They were falling over each other ...trying to get to the people. Whilepeople were running away they werebeating them, just hitting [them] overtheir heads. They couldn't care." Theincident triggered further violence and

unrest in Mitchell's Plain. An internalpolice inquiry into Rockman's claims,ordered by Minister of Law andOrder Adriaan Vlok, led to the prosecution of two senior riot controlpolicemen on assault charges.

For daring to expose police abuse,Lt. Rockman was vilified by colleagues as a "kaffil" (a derogatoryterm applied to South African blacks),was accused of being paid by antiapartheid organizations, was subjectedto disciplinary proceedings, suspended and threatened with death.

Rockman later was instrumental infounding the Police and Prison Officers Civil Rights Union which, withRockman as its national president, isseeking to negotiate the elimination ofracially discriminatory practices in thePolice and Prisons Services. The union

HThere were innocentbystanders there the policewere hitting like mad."

is not recognized by the government.Rockman was fired in March forleading a nation-wide strike by blackprison warders and policemen forhigher pay and improved workingconditions.

The Southern Africa Project fundednine civil claims resulting from violence against anti-apartheid activistsby police. One case involves a civilaction for damages, R. Pillay v. Jansenville Town Council, brought on behalfof Themba Richard Grootboom. OnOctober 11th, 1986, Grootboom wasplaying soccer with his five childrenoutside his home when a MunicipalPoliceman ordered them to stop.When they refused, the policemanshot and killed Grootboom. An inquest hearing concluded that thedeath was caused by "an actamounting to an offence." The curatorad litem has filed the civil actionseeking damages and is requestingthat the inquest record be forwardedto the Attorney General for possibleprosecution.

Guilt By Association

In recent years, the South AfricanGovernment has increasingly resorted

27

•••Mogopa elder cleans ancestral grave

to arresting political activists on criminal charges subject to the deathpenalty. Activists participating indemonstrations are being held responsible for violence which often followswhen angry crowds are provokedfurther by police or surrogate authorities. If a death occurs, any participantin the demonstration may be chargedand convicted of murder-even ifthere is no causal connection to the

28

Afrapix/Paul Weinberg

death-on the theory that the entirecrowd shared a "common purpose."South African human rights lawyersbelieve the State's underlying motiveis to intimidate activists into stayingaway from demonstrations and massprotests.

The Southern Africa Project fundedthe defense in six cases in whichindividuals or groups were chargedwith responsibility for deaths that

occurred during politically-relatedactivities. In one of those cases, State v.Khwela, Dlamini & Mkize, the defendants, all minors, were accused ofmurder committed when a protestcrowd of about 200 people allegedlykilled a black township councillorassociated with the Zulu quasicultural body, Inkatha. Lawyers believe the accused, who had beenoverheard giving a report on the

Forced removals have beenan integral component ofapartheid policy.

councillor's death at a townshipmeeting, were targeted because theyare well-known activists in theDurban area. They were detainedinitially by Inkatha agents and reportedly suffered mutilation before beinghanded over to the KwaZulu police."Confessions" were allegedly extracted under torture. The matter willproceed during 1990.

Forced Removals

Since 1983, the Southern AfricaProject has provided legal assistanceto members of the Mogopa community who were forcibly removed bythe South African Government fromland they had owned and occupiedfor over seventy years. South Africa's"forced removals" policy is authorized by Section 5(1) of the BlackAdministration Act, No. 38 of 1927.The Act grants the State Presidentbroad powers to remove any blackperson, black community or tribefrom any area in the Republic whenhe deems it expedient.

The Bwakena ba Mogopa tribe soldoff their cattle in 1912 and 1931 topurchase two fertile farms in SouthAfrica's Western Transvaal. Theydeveloped their lands into a thrivingfarming community which generatedenough cash crops that the surpluscould be sold to local agriculturalcooperatives. During 1981, SouthAfrican authorities targeted the Mogopa community for relocation. In1983, to hasten their "voluntary"


Mogopa woman forcibly evicted from her home

•••

removal 80 miles away to Pachsdraai,the government bulldozed Mogopa'sschools and churches, discontinuedbus services, contaminated the watersupply with diesel oil and terminatedresidents' pensions.

After losing an initial court application, the Mogopa residents' claimswere vindicated on appeal on September 19th, 1985, by the AppellateDivision of the South African Supreme Court, which ruled that wherea community protests a Section 5(1)removal order, Presidential decree isinsufficient. Instead, Parliament mustadopt a resolution approving theorder, and the order must specify anappropriate relocation site. Since thismeant the government would have toentertain the views of the newlycreated Indian and coloured Housesof Parliament, this decision effectivelyended the practice of forced removalsunder Section 5(1). Soon afterwards,because the international outcry overMogopa increased the political cost ofmaintaining the policy, Section 5(1)was repealed.

As a direct result ofimposed relocation to oneof 10 artificially-created"homelands," eight millionSouth Africans lost theircitizenship.

However, when the jubilant Mogopa residents prepared to return totheir homes, they discovered that theirlands had been expropriated. No priornotice was given of the governmentaction, nor was any compensationpaid. Three years of broken governmental promises to resettle the community followed, during which theMogopa people were shunted aboutfrom Mogopa, to Pachsdraai, to Bethanie, to Onderstepoort and, recently,back to Mogopa.

In 1988, 70 elders of the tribe wongovernment permission to return totheir ancestral lands to clean thegraves of their forebears. Once there,they remained. In February 1989, theywere served with a government noticethat permission was being withdrawn


because they had abused the privilegegranted them. The residents chose toignore the notice. The governmentmade a successful application for asecond eviction order, which theMogopa people have challenged onthe basis that the State's expropriationorder was invalid and therefore theland still belongs to them. Evictionhas been temporarily forestalled andan appeal is currently pending beforethe Pretoria Supreme Court.

Forced removals have been anintegral component of apartheidpolicy. The practice involves relocatingAfricans too old or sick to work inwhite industries to remote, barrenreserves known as "homelands" anddivesting them of their South African

citizenship by declaring the "homelands" independent. As a direct resultof imposed relocation to one of 10artificially-created "homelands," eightmillion South Africans lost theircitizenship.

Urban blacks also face removal:when existing townships are abolished to make room for whitehousing, when they are evicted fromsquatter settlements, and through

application of the Group Areas Act,which segregates residential areas byrace. Since 1961, 2 million black residents have been relocated by officialestimates, 3.5 million by unofficialrecords.

In 1985, due in part to internationalcensure over the Mogopa removals,the South African Government announced that forced removals wouldstop. In 1986 a new bill restored SouthAfrican citizenship to some 20 percentof persons designated as "homelands"nationals, specifically those urbandwellers who had earned the right toresidence in urban townships. The1986 abolition of the "Pass Laws,"which limited Africans' ability toleave the "homelands" and to live

Afrapix

and work in urban areas, helpedreduce government attempts to disband vulnerable squatter settlements.However, the authorities simplyresorted to other tactics, such asexpropriating land and cutting offservices, to achieve the same ends.

For example, as late as September1988, the government announcedplans to relocate more than 248,000Africans between 1988 and 1995.

29

SADF dismantles fence erected to prevent vigilante attacks on KTC squatter camp near Cape Town

•••Afrapix/Adil Bradlow

While announcing policy reforms inFebruary 1990, President de Klerk didnot state that the forced removalspolicy would end, but only that itwould undergo "comprehensiverevision."

Vigilante Violence

White troops beating, teargassingand shooting unarmed townshipresidents, often children, made fordramatic television footage, andhelped contribute to the internationaloutcry against the State of Emergency.The use of right-wing vigilantes,acting without intervention from thesecurity forces, has become a muchmore effective, lethal and less accountable means of curtailing antiapartheid opposition.

In recent years, the worst such violence has occurred. in the impoverished

30

black townships surrounding Pietermaritzburg in Natal. There, vigilantesassociated with Inkatha, the quasicultural organ created by KwaZuluhomeland leader Gatsha Buthelezi,have been involved in the deaths ofover 3,000 people, most of them affiliated with the UDF or COSATU, andthe dislocation of an additional 100,000.Repeated attempts by the UDF, theANC and church leaders to resolve theconflict in Natal have failed, in partbecause of state intervention, includingthe strategic detention of key UDFnegotiators, and in part because ofobstacles to negotiations created by theInkatha leadership.

The conflicts erupted initially because of successful UDF/COSATUpolitical organizing efforts in Natalwhich analysts claim threatenedInkatha's traditional power base.Chief Buthelezi has blamed a majorescalation in violence begun in late

March 1990 on UDF and ANC sympathizers. However, independentobservers and journalists have described the violence as "calculatedaggression" by Inkatha which isstriving to maintain support amidstgrowing pro-ANC sentiments, especially since the February 11th releaseof Nelson Mandela.

On March 27th, for example, PierreCronje, a white member of Parliament, watched as many as 3,000Inkatha warriors armed with shotguns, rifles and spears carry out acoordinated attack on four predominantly UDF-supporting communities.The MP stated: ''There is absolutelyno doubt that this was a calculatedInkatha attack that required considerable logistical preparation. There is noway a force of that size could haveassembled there [spontaneously] ... "The next day, when the same communities were attacked again and 35


On January 27th, 1989 a black youthposing as a patient gave a false name inorder to bypass security arrangementsand gain access to the Soweto surgery

suffered losses during the destructionof Crossroads. The Government willalso contribute additional monies notexceeding R500,OOO to match othercontributions to the trust fund on aRand-for-Rand basis.

residents slain, Inkatha's forces hadswollen to 12,000. An April3rd, 1990,report by the South African Council ofChurches stated that since March25th, over 80 people had been killedand hundreds injured, approximately140 homes had been razed to theground and upwards of 14,000 peopleforced to flee.

During 1989, the Southern AfricaProject financed nine cases arising outof the violence in Natal.

The Southern Africa Project alsocontributed funds to the continuinglitigation which arose out of vigilantedestruction of the Crossroads squattercamp four years ago. For years, theSouth African Government tried tointimidate people into leaving theramshackle camp outside Cape Town.They conducted door to door raids,razed shacks, teargassed and batteredresidents. These efforts only strengthened squatter resistance and subjectedthe government to international criticism. Yet, in just a few days in Mayand June 1986, right-wing vigilantes,apparently supported by securityforces, virtually destroyed Crossroadsand its satellite camps. Between 30and 40 people died and tens of thousands were rendered homeless. Filmfootage documented both the brutalityof the vigilante forces and the complicity of the police, who either refused to intervene or actually assistedin the attacks.

After a massive campaign whichgathered over 3,300 statements fromresidents, 21 families filed a civil suitclaiming R312,OOO in damages. Theissue in the case was whether thegovernment was a party to the violence, either through overt support orby failing to take reasonable steps toprevent or limit it.

On March 5th of this year, the LegalResources Centre in Cape Town,which represented the plaintiffs in thecase, announced that a settlement "inthe public interest" had finally beenconcluded with the government. TheSouth African Government has undertaken to make an initial contributionof Rl.5 million towards the establishment of a trust fund devoted to financing community projects andproviding relief to residents who


"Assassinations have theeffect of controllinggovernment oppositionwhen all other methods. ..have failed."

Assassinations

David Webster's funeral procession

of Dr. Abu-Baker Asvat. After hearingshots, Mrs. Albertina Sisulu, copresident of the United DemocraticFront and Dr. Asvat's nurse, rushed into find that Dr. Asvat had been shotdead. Dr. Asvat, who was health secretary for the Azanian People's Organization and who had worked in Sowetofor some 15 years, was known popularlyas the "people's doctor." His workin Soweto frequently brought him intoconflict with the authorities. He received numerous death threats andsurvived two previous attempts on hislife. His assailants referred to him as a"political troublemaker."

The South African Police apprehended two men and charged themwith murder and robbery in theshooting of Dr. Asvat. However, Dr.Asvat's family issued a statement

•••Afrapix/Steve Hilton-Barber

31

Resident lies dead while security forces take a break after "all night clean up"

•••

rejecting the inference that he was thevictim of a common robbery as "notconsistent with the known facts and theinherent probabilities." The SouthernAfrica Project provided funds to assistlawyers representing Dr. Asvat's familyduring the investigation into hismurder.

'l've been shot with a shotgun, getan ambulance," David Webster toldMaggie Friedman before he collapsedonto the ground. He died half an hourlater, becoming South Africa's 61stassassination victim since 1960.Friedman and Webster, a foundingmember of the Detainees' ParentsSupport Committee, had just finished amonograph entitled: '1nformal, Extralegal and Surrogate Repression." In itthey concluded: "Assassinations havethe effect of controlling governmentopposition when all other methods,such as detention or intimidation, havefailed. It is a very rare event indeedwhen such assassinations are eversolved." Despite a large reward offeredby Webstets friends and colleagues andthe naming of a special investigator bythe government, no one has beencharged for the May 1st, 1989 slaying.

Anti-apartheid forces have longbelieved that unsolved assassinationsof prominent activists in South Africaand in countries as far away as Francewere organized by South Africansecurity forces, yet it was only recently that concrete evidence came tolight proving the relationship. In adramatic eleventh-hour confessionfrom death row, a former member ofa police death squad, Butana AlmondNofomela, revealed his role in theassassination of a number of politicalactivists, among them civil rightslawyer Griffiths Mxenge.

Nofomela's supervisor, Capt. DirkCoetzee, confirmed the allegations inan interview he gave in the Afrikaanslanguage paper Die Vrye Weekblad,after fleeing the country. Furtherevidence of death squad activitybegan to appear in several unrelatedcourt cases in Natal. Finally, at theend of 1989, the assassinations ofWebster and of SWAPO memberAnton Lubowski, gunned downoutside his home in Namibia in September 1989, were traced to a former

member of the Brixton Murder andRobbery Squad. Namibian police havesince issued warrants for the arrest ofthree members of the Squad.

On February 9th, 1990 the SouthAfrican Defence Force acknowledgedthat the Civil Cooperation Bureau(CCB), now being linked to the assassinations of both Webster andLubowski, is a front organization forSouth Africa's military intelligence.The CCB was reportedly comprised ofsmall, separate cells of former Policeand Defence Force members who forseveral years have carried out surveillance of "aggressive activities." Apolice brigadier, investigating thekillings, was quoted as saying that theCCB is responsible for "various incidents of murder, arson, bomb explosions and intimidation." South Africa's Defence Minister Magnus Malanhas denied having any knowledge ofthe CCB before November 1989, andPresident de Klerk has said he learnedof its existence only in January 1990.

The Southern Africa Project fundeda South African-based IndependentBoard of Investigation into InformalRepression (IBIIR), created 'to investigate the assassination of David Webster, the attempted poisoning of Reverend Frank Chikane and otherattacks against anti-apartheid leadersand organizations. The Project alsoworked with other internationalhuman rights organizations to pressure the South African Government tohold an independent judicial inquiryinto the use of death squads.

At the end of January, State President de Klerk finally appointed aone-man "Commission of Inquiry intoCertain Alleged Murders" chaired byJustice Louis T.e. Harms. The Commission's terms of reference includeinquiries into alleged murders orother unlawful acts of violence committed to further any political orconstitutional aim inside South Africaor the nominally self-governing homelands. The Commission's scope ofinquiry includes both unsolved investigations and already-concluded courtactions. But the official notice settingforth the Commission's mandatemakes it appear that it may onlyconduct inquiries into unsolved matters if current investigations are notprogressing due to lack of evidence.

Human rights lawyers and antiapartheid activists are troubled by someof the Commission's procedural rules.For example, the range and duration ofcross-examination of witnesses is limited, the South African Police, membersof which have been implicated inassassinations, will remain primarilyresponsible for Commission investigations, and the narrow scope of inquirywill mean that many of the 6O-pluspolitically-linked killings may remainunsolved. Moreover, since the Commission's jurisdiction is specifically limitedto acts "committed in the Republic ofSouth Africa," extraterritorial violenceallegedly perpetrated by South Africanagents, such as the murder of AntonLubowski, will not be investigated.

•••

32 Lawyers' Committee for Civil Rights Under Law

Internal Resistance

ban the organizations themselves.During that year, a total of 31 antiapartheid organizations, including theUDF, were instructed to cease virtually all of their functions except bookkeeping. But members soon regrouped as the Mass DemocraticMovement (MDM), a leaderless,structureless force. The MDM incorporated not only the traditional core ofthe anti-apartheid movement-labor,student, church and communityorganizations-but also some moderate whites, and previously progovernment black forces, such assome "homeland" and traditionalleaders now affiliated with the Congress of Traditional Leaders of SouthAfrica (CONTRALESA).

Over the last two years, theSouthern Africa Project providedassistance in 31 cases that arose out ofthe resistance tactics of the antiapartheid movement in South Africa.

The Defiance Campaign

In late July 1989, popular resistance~ inside South Africa took a new turn as:3

::;s the MDM embarked on an orchestrated.~ national campaign of peaceful defiance>.Ll'-- against the government's policies of.s.. racial segregation. Borrowing a chapter~ from the ANC-directed Defiance Cam-

paign of 1952, anti-apartheid activistsdeclared themselves no longer subjectto State of Emergency and other "unjust" restrictions. Across the country, incarefully coordinated strategies, blackactivists picnicked or swam at "whitesonly" parks, beaches and swimmingpools. Over two hundred black patientsturned up at white hospitals to receivemedical treatment. Black activistsboarded segregated buses with ticketspurchased by white activists. At factories and mines, black trade unionistsignored "separate facilities" policies touse white toilets and cafeterias. And onAugust 20th, the sixth anniversary ofthe formation of the UDF, activistsunder government restrictions addressed audiences at rallies all overSouth Africa, declaring themselves andtheir organizations to be unbanned.

has raised local grievances along withnational demands. Most of thesegroups were consolidated, in 1983,under the umbrella grouping, theUnited Democratic Front (UDF).

In the formative stages of the UDF,government attempts to crush theorganization centered on banning anddetaining top leaders with or withoutcharge. The UDF simply generatednew, more diffuse layers of leadershipfrom within the ranks of its memberorganizations. It soon became impossible, without detaining almost everymember of the UDF, to prevent itfrom functioning.

In 1988 the government decided to

i. ~:....

Anglican Archbislmp Desmond Tutu joins the Defiance Campaign at "whites only" Cape Town beach

•••Over the past ten years, there has

been a fundamental re-ordering of thepolitical balance inside South Africa.Beginning in the early 1980s, defiantresistance to apartheid swept throughSouth Africa, from urban centers toremote rural areas never beforetouched by political protests. Responding to government banningsand jailings of the prominent leadership of the more higWy-structuredorganizations formed in past decades,the newly-emergent resistance movement has been built from the grassroots up, with decentralized leadership. The resulting network of local,regional and national organizations


In defiance of State of Emergencyregulations banning calls for electionboycotts, the MOM organized a widespread boycott campaign for theSeptember 6th national parliamentaryelections. Only 23 percent and 22percent respectively of registeredvoters cast ballots for candidates tothe coloured and Indian chambers ofParliament. The National Party lost 30seats, making the current parliamentary balance of power the slimmestmajority held by the National Party inthree decades.

called to unban organizations werethemselves banned. A September 4thpre-election rally at St. George's Cathedral and a nearby Methodist church inCape Town ended abruptly when riotpolicemen armed with guns and whipsinvaded church premises searching forprotestors. From August through November, over 3,500 Defiance Campaigners were arrested or detained,including 25 ex-detainees who haddefied their restriction orders. And,during the September 6th electionboycott, at least 20 activists were killed.

assembly to draw up a non-racial,democratic constitution for a freeSouth Africa. The delegates alsoagreed unequivocally that the international community should intensifypressures for comprehensive sanctionsuntil apartheid is eradicated.

Rent and Consumer Boycotts

One effective resistance tactic developed in the early 1980s by activistswas the use of boycotts organized

Tent set up to protest September 1989 elections

The authorities' early reaction to thepassive resistance campaign was cautious, and several mass marches, inCape Town and Johannesburg forexample, were allowed to proceedpeacefully. But the government's tolerance was soon exhausted. Studentdemonstrations were broken up withteargas, whips and birdshot. Rallies

34

•••The MOM continued undaunted.

On December 9th, the MOM-organizedConference For A Democratic Futurebrought together the broadest spectrum of political opposition to apartheid ever seen in South Africa. Over4,600 delegates, representing morethan 2,000 organizations, demandedthe establishment of a constituent

Afrapix/Rafs Mayet

within local black communities bothto deprive the government of fundsneeded to pursue apartheid policiesand to develop alternate democraticstructures for self-government. One ofthe most celebrated court decisions of1989, State v. Moses Mayekiso & 4Others, was funded in part by theSouthern Africa Project. Nearly three

Ul'wyers' Committee for Civil Rights Under Law

1

years after being charged, MosesMayekiso and his co-defendants wereacquitted of treason, sedition andsubversion for their roles as community organizers with the AlexandraAction Committee (AAC).

In reaction to the grossly inadequateservices offered by state agencies, agroup of Alexandra residents formedthe AAC and organized rent andconsumer boycotts. The State allegedthat the defendants helped set up"peoples' courts," and instituted campaigns to get South African troops outof the township and to disband thegovernment-backed Alexandra TownCouncil. The defendants' creation oflocal yard, street, and block committeeswas considered tantamount to treason,since these alternative structures wereallegedly intended to undermine thegovernment. On April 24th, 1989, thepresiding judge acquitted the defendants, finding that, contrary to thecharges, they had simply attempted toupgrade the bleak living conditions inAlexandra.

Another widespread and effectivecommunity resistance tactic in SouthAfrica has been rent boycotts. Theboycotts were organized to protestagainst increasing rents and deteriorating conditions in the townships.There is massive overcrowding. Anestimated five million people arehomeless, with a housing shortage ofat least 800,000 units. Until recently,residents were not permitted to owntheir houses, and were forced to pay arelatively high proportion of theirwages to the government in rents andutilities to live in houses that werelittle more than shacks with tin roofs.Roads, water, drainage, garbagecollection and sewerage systems arein poor repair.

Because the issues behind the rentboycotts affected all of the residents ofthe black townships, as did the government's attempts to break the boycottsby force, the boycotts proved a particularly successful means of politicizingand organizing resistance in the townships. Boycotts have also proved successful in winning important economicand political concessions from the SouthAfrican Government.

The residents of Soweto joined arent strike which had begun in town-

I.11wyers' Committee for Civil Rights Under I.11w

ships south of Johannesburg andwhich soon spread to about 650,000households in over 50 black townships throughout South Africa. Theyhad two basic complaints. First, residents argued that they had beenpaying rent to the government ontheir houses for up to 25 years, andhad in effect already bought them.Second, Sowetans argued that whiletaxes on their labor effectively subsidize the "white" city of Johannesburg,that tax base is not extended to subsidize rents in the black townships.

Thousands gather at the Conference for aDemocratic Future Afrapix/Pau] Weinberg

•••

Rent boycotts prove aparticularly successfulmeans of politicizing andorganizing resistance in thetownships

The government attempted to breakthe rent boycotts in participatingtownships by turning off hot waterand electricity, even during the wintermonths. Delegations of governmentofficials made house-to-house visitsstarting at 3:30 a.m. to demand backrent. Residents were evicted, andwhen they moved back in, citycouncil agents removed all the doors

in their houses. Violent confrontationswith police occurred. Instead of capitulating, almost 90 percent of theresidents continued to strike by notpaying their rents. They fought backagainst the city council by nailing upnew doors, and rewiring meter boxesto restore electricity.

The Southern Africa Project financed the legal representation ofSoweto rent boycotters and similarboycotts in 12 other townships. Thefunds assisted South African lawyersto defend thousands of residents whohad been evicted, in some cases enmasse or without due process, orresidents whose belongings had beenconfiscated in lieu of payment. Inmost of these actions, the court ruledin favor of the defendants on procedural due process grounds, and theuse of mass summons was curbed.

Despite settlement overtures by theSoweto City Council in 1989, theSoweto rent confrontation rages onunabated. Other rent boycott actionsare still before the courts.

Labor

One of the major changes whichhave taken place in the past decade isthe growth of independent tradeunions. Since the formation of the firstindependent labor unions in 1979,workers have thwarted governmenthopes that they would focus onnarrow "bread and butter" issues byassuming a central role in the antiapartheid movement. In tandem withtheir anti-apartheid activities, independent trade unions have engaged ina record number of strikes, forcingunprecedented concessions fromindustries, including wage hikes,better working conditions and theopening of some previously "whitesonly" jobs to black workers.

The non-racial trade unions wereconsolidated in 1985 into the Congressof South African Trade Unions(COSATU), which now has a membership of almost one million. Despitegovernment restrictions in early 1988forbidding COSATU from engaging inany political activities, the labor federation organized the most massivestayaway in South African history,

35

Moses Mayekiso walks through Alexandra township

•••

with an estimated 3 million participants, to coincide with the September1989 white elections.

In the period leading up to thestayaway, members of the SouthAfrican Police Security Branch raidedCOSATU General-Secretary Jay Naidoo's home with a search warrantwhich authorized the seizure of "documents and video or sound recordings." Although Naidoo's lawyerquestioned the validity of the warrant,police confiscated documents andvideotaped the inside and outside ofthe house. They then searched officesat COSATU headquarters under asimilar warrant. The Southern AfricaProject funded a successful application, Naidoo & COSATU v. Minister ofLaw & Order, to set aside the twosearch warrants used, to secure thereturn of all documents, to preventthe police from showing their videotapes to anyone and to compel thepolice to hand over the recordingsand any copies.

The Rand Supreme Court ruled onSeptember 26th, 1989, that Section 25of the Criminal Procedure Act, underwhich the warrant had been issued, isapplicable only at the place where anoffense has been committed or issuspected and must be based onsworn information. In addition, aparticular police officer must benamed to execute the warrant. Sincenone of these conditions had beenmet, the judge-who was quoted ascalling the wording of the warrant"gibberish" and "almost an invitationto ransack"-ruled in favor of theplaintiffs. Police returned all thedocuments, then immediately reseized them under a new searchwarrant which amended the problemscited by the court.

In August of 1987, the NationalUnion of Mineworkers (NUM) stagedthe largest and most costly miners'strike in South Africa since 1946. Theminers won a 23 percent pay raiseand reconsideration of benefits suchas holiday pay and compensation fordeath and injury. For more than threeweeks over 340,000 miners downedtools, stopping production in 52 coaland gold mines and costing corporations and the state approximately $100

36

million dollars. The strike was a clearassertion by the trade unions thatblack labor would no longer be exploited with impunity.

The Southern Africa Project fundedthe extensive legal assistance necessary to support the striking miners,including 12 court applications tohave dismissed workers reinstatedand approximately 50 civil claimsbrought by miners against minesecurity personnel.

Resistance ThroughArmed Struggle

According to a recent United Nations study, South Africa's militaryaggression and destabilization ofneighboring countries cost the regionover $60 billion and 1.5 million livesbetween 1980 and 1989. The ostensibleexternal targets have been armedcombatants of the African NationalCongress (ANC), the Pan AfricanistCongress (PAC) and, until mid-1989,Namibia's South West Africa People'sOrganisation (SWAPO). The ANC andPAC formed military wings,Umkhonto we Sizwe and Poqo respectively, after they were banned andforced underground in 1960 for theiropposition to the government.

To deter neighboring countries fromoffering their support to the liberationmovements, the South African Defence Force has bombed refugee

settlements and residential areas;kidnapped ANC combatants fromneighboring countries; and assassinated opponents in cities as far awayas Paris. The South African Government has also encouraged antigovernment insurgency groups inMozambique, Zimbabwe and Angola.

Two forms of political trials haveemerged as a result of the armedstruggle between the South AfricanGovernment and the liberation movement forces at home and in neigh-

Afrapix/Cedric Nunn

boring states. The first is the trials, incivilian courts, usually on criminalcharges, of people accused of beingANC or PAC combatants. The secondis the trials of a growing number ofwhite South African men who arerefusing to serve in the South AfricanDefence Force because they are unwilling to be a party to the occupationof the townships and invasions ofneighboring countries.

In the past two years, the SouthernAfrica Project has funded representation in 32 cases involving approximately 90 defendants who werecharged with treason, terrorism,sabotage, murder and similar offensesallegedly for their involvement in thearmed struggle against apartheid. Inabout one-third of the cases, defendants and state witnesses alleged thatthey were tortured to extract statements. Lengthy determinations aboutcharges are also not unusual. Onedefendant, Themba Khumalo, was

Lnwyers' Committee for Civil Rights Under Lnw

1

White Draft Resistance

When David Bruce was called upfor military service, he reported tocamp on August 5th, 1987, as required, but announced that he wouldnot serve the apartheid regime. Hewas convicted in mid-1988 and became the first conscientious objector tobe sentenced to the maximum six-yearjail term. After serving 19 months ofhis sentence, Bruce was freed duringApril 1990 while an application tohave his sentence reduced was successfully appealed to the AppellateDivision. Later this year a lower courtwill decide whether he must continueserving time or will remain free.

Charles Bester, then 18 years old,reported to the Witwatersrand Command on August 5th, 1988 and toldthem that he was refusing to serve.South Africa's narrow military exemptions policy meant that Bester, although deeply religious, could notqualify for religious objector statussince his opposition to military servicewas political as well as religious.Bester was sentenced to six yearsimprisonment on December 5th, 1988.Because of the success of the DavidBruce appeal, Charles Bester will alsohave his sentence reviewed and maybe freed as well.

An increasing number ofyoung white men hadbegun to actively opposethe draft

In response to the growing use ofthe South African Defence Force toquell unrest in the townships and toattack neighboring countries, anincreasing number of young whitemen, organized by the End Conscription Campaign (ECC), had begun toactively oppose the draft. Althoughthe ECC was virtually banned in 1988,opposition to the draft continued.During 1988, 144 draftees announcedthat they would go to jail rather thanserve in the SADF. Just one year later,the number had risen to 771. TheSouthern Africa Project funded thedefense of two of the most prominentobjectors, David Bruce and CharlesBester.

ened with further assault if she didnot cooperate. Another state witnesswho alleged that Khahla had beenseen with a "terrorist" was unable toidentify the "terrorist" from photos.The State's case was subsequentlydismissed for lack of evidence. WithProject assistance, Khahla is nowinstituting a civil claim for damagesresulting from his assault.

The Southern Africa Project hasfunded six other cases in which theState did not have sufficient evidence to lead to a conviction, or itscase relied primarily on confessionsextracted by torture, or police arrestprocedures were defective. Acquittals are not automatically grantedwhen such violations are establishedin court, but in some of the cases thedefendants have won lighter sentences or the right to appeal, whilesome have been judged not guilty.

Captured combatants, when triedfor acts which they committed asmembers of resistance armies, have attimes refused to put on a defense,arguing that they are prisoners of warand should not be tried in civiliancourts. The combatants base theirargument on the 1977 Protocol of theGeneva Conventions, which extendsinternational legal protection to combatants in wars of national liberation.

South Africa'S militaryaggression anddestabilization ofneighboring countries costthe region over $60 billionand 1.5 million lives

South Africa, however, has not ratifiedthe Protocol. Many of these trialsresult in death sentences or longprison terms.

The Southern Africa Project funded21 additional cases in which individuals were charged with "terrorism,"possession of illegal weapons, leaving

~ the country illegally, receiving militaryS!2. training or furthering the aims of the.s.. ANC or PAC. Seven trials ended inttl~ convictions, and the remainder are

still pending.

•••Conscientious objectors enroll in protest

held in solitary confinement for a yearwhile the Attorney-General decidedwhether to prosecute and on whatcharges. In many of the cases whichthe Project funded, the State hadinsufficient evidence of the defendant's culpability. The provision ofadequate legal counsel for such defendants is often sufficient to secure anacquittal and, in cases where confessions were extracted by torture, damages.

In State v. Thembinkosi Khahla &Nodzedze Runeli, Khahla and his girlfriend were charged with terrorismand various related offenses after agun was found in her house. Afterquestioning by the police, Khahla wasrushed to a hospital unconscious withbum marks. One policeman testifiedat trial that Khahla fell on a burningheater in the interrogation room. Thepoliceman was unable to describe theheater or, when requested, to produceit.

The magistrate to whom Khahlaallegedly confessed could not explain why he had changed Khahla's"Yes" to a "No" in answer to thequestion on the confession form asto whether he had been assaulted.Nor could the magistrate explainwhy he had not investigated chargesby a state witness that she had beenassaulted by the police and threat-


Released ANC leader Nelson Mandela calls on internationalcommunity to retain sanctions against South Africa

In assessing the factors which led tothe recent reforms State President EW.de Klerk has conceded, South Africananti-apartheid leaders point to theimportant complementary role playedby the international community inpassing sanctions against South Africaand maintaining pressure on humanrights issues. To maximize the impactof its legal assistance work in SouthAfrica, the Southern Africa Project hasdeveloped programs which pursuestrategies falling into two generalcategories: 1) monitoring public andprivate compliance with Congressional sanctions and divestmentlegislation; and 2) educational campaigns designed to inform the American public about developments insouthern Africa, and to organizepressure for change.

Sanctions Monitoring

Following the enactment of theComprehensive Anti-Apartheid Act(CAAA) by Congress in 1986, theSouthern Africa Project established aSanctions Monitoring Group to monitor the implementation and enforcement of the sanctions mandated in theAct. The Sanctions Monitoring Groupconsists of Project staff and volunteerattorneys from law firms and lawfaculties with expertise in international trade, customs, tax, and corporate law. In June 1988, the MonitoringGroup published an in-depth studyassessing compliance with the CAAA,entitled ''Implementation of the Comprehensive Anti-Apartheid Act of1986." The document was distributedto Congress, international organizations, domestic anti-apartheid organizations, and other concerned groups.

The Southern Africa Project alsomonitored compliance with the sanctions legislation, and drew publicattention to continuing and newviolations of those laws. When necessary, the Project brought sanctionscompliance issues to court.

Despite the admission by AssistantSecretary of State for African Affairs

International Pressure

Herman Cohen that sanctions havebeen "effective in bringing about newthinking in Pretoria," the Reagan andBush Administrations have violatedand continue to violate the spirit, if notthe letter, of the Comprehensive AntiApartheid Act (CAAA). As recent

reports from the General AccountingOffice, Congressional hearings andother sources document, the Reaganand Bush Administrations have beenfaulted for lax implementation andenforcement of the legislation, as wellas for an excessively narrow interpretation of banned products.

The CAAA, for instance, bansimports of all products of South

African Government parastatals.However, the Customs Departmentwas allowing millions of dollarsworth of banned parastatal goods,from textiles to food, to enter thecountry simply because the StateDepartment had not provided it with

•••

a detailed list of parastatal products.Gold, which accounts for 40 percentof South Africa's export revenues, wasnot immediately placed under the banbecause it was not initially defined asa product of a parastatal, although itis produced by the South AfricanReserve Bank. Although steel and ironare specifically banned, steel girdersmay be imported because they are

38 Inwyers' Committee for Civil Rights Under Inw

partially fabricated. As a result, theUnited States imported $353.6 millionin the two years following the imposition of sanctions.

In 1988 the Project challenged theReagan Administration's view that theAct bars only the importation of"uranium ore" and "uranium oxide"from South Africa, but not uranium inother forms. The Project sponsoredlitigation against this interpretation

before the Nuclear Regulatory Commission for almost a year and onappeal before the U.S. Court of Appeals for the District of Columbia inRonald Dellums v. United States NuclearRegulatory Commission. In December of1988 the U.S. Court of Appeals dismissed plaintiffs' petition for review,basing its dismissal on a finding thatthe petitioners lacked standing.

L1J.wyers' Committee for Civil Rights Under L1J.w

Educational Campaigns

Using our direct connections withlawyers and human rights groups inSouth Africa, the Southern AfricaProject provides current informationon South African issues and seeks toorganize public, Congressional andAdministration pressure on the SouthAfrican Government on specific legaland human rights issues.

On the day that State President FW.de Klerk announced the changeswhich he would be initiating in theapartheid system, the Southern AfricaProject prepared an eight-page analysis of his statement. While applauding President de Klerk for theseimportant changes, the report noted,at the same time, that the State President's position falls short of the preconditions for negotiation set by theANC in the Harare Declaration andapproved by a consensus, includingthe United States, in the GeneralAssembly of the United Nations.

For example, President de Klerkannounced the release of certainpolitical prisoners. His initiative,however, only extended to approxi-

The Reagan and Bushadministrations have beenfaulted for laximplementation of thesanctions legislation

mately 77 of the then estimated 2,500to 3,000 political prisoners. In order toclarify and define the expectations ofthe international community when ithas urged the release of politicalprisoners, the Project produced asecond report that identified thosecategories of prisoners in South Africawho should be eligible for release.

In defining the term "politicalprisoners," the report examined statepractice relating to extradition andamnesties. The definition used toidentify prisoners eligible for releaseduring the independence process inNamibia was also examined.

Based on the definition derivedfrom those sources, the report con-

cluded that the term political prisonerincludes those jailed because theirpolitical beliefs, associations or deedsare considered a threat to state security, including all those who acted

HMost Of those awaitingexecutions are victims ofan unjust society andtherefore indirectly arepolitical victims as well."

with political motives or during andas part of some form of uprising.Even those crimes which are simplyrelated to, as opposed to being instrict pursuit of, political goals aredeemed within the category if there isa preponderant political motivation.These norms do not judge the validityof the political motivation or of thetactics. Rather, the mere existence ofthe antagonism between individualand government may be sufficient tocall the person a political offender.

Under these norms then, Presidentde Klerk should have included therelease of several additional categoriesof prisoners: 0) those who have beenconvicted under the Internal SecurityAct or its predecessor legislation; (2)those convicted of the common lawcrimes of treason, sedition and relatedoffenses; (3) those convicted of othercommon law crimes which are politically related; (4) under qualifiedcircumstances, those convicted ofoffenses under the Explosives Act andthe Arms and Ammunitions Act; (5)those convicted of violating State ofEmergency regulations; and (6) administrative detainees held under thedetention provisions of the InternalSecurity Act or the State of Emergency regulations.

Under South Africa's fiction of"homeland" independence, Ciskei, theTranskei, Venda and Bophuthatswanaall have legislation similar, and attimes identical, to that of South Africa,which has been used to incarcerateopponents of apartheid. Prisonersheld under those laws must also bereleased.

A primary purpose of the tworeports was to assist in the determination that must be made by Congress

39

•••Clerics lead march protesting police brutality

and the Bush Administration as towhen those preconditions for liftingsanctions which the United StatesGovernment endorsed, in the 1986sanctions legislation and in the 1989United Nations General Assemblyresolution, have been met.

In 1988, the Southern Africa Projectlaunched a campaign against thedeath penalty in South Africa. At wellover 100 executions a year, SouthAfrica had what was then the highestper capita rate of executions in theworld. At least 60 of the 280 prisonerson death row in 1989 were convictedfor political unrest-related crimes.

To highlight the tragedy of politicalexecutions, the Project brought theplight of the Sharpeville Six to theattention of the American public in1988. The Sharpeville Six were a

40

Afrapix/Paul Weinberg

group of activists convicted of murderand subversion under the questionable doctrine of "common purpose."The conviction was based on their"association" with a crowd, somemembers of which killed a government official. In spite of the court'sholding that none of the actions of thesix were causally connected to theofficial's death, they were sentencedto death.

The Project held a press conferencewhich featured Joyce Mokhesi, sisterof one of the accused, FrancisMokhesi, and Francis Mokhesi'sten-year-old daughter Mamolise.There was bipartisan participation inthe press conference: U.S. SenatorsPaul Simon (D-IL), and Nancy Kassebaum (R-KS), Representatives JohnConyers (D-MD, Constance Morella

(R-MD), and Tom Lantos (D-CA), andseveral prominent religious and antiapartheid leaders.

During our nation-wide campaign,the Project worked with over 300individuals and groups, supplyingthem with a 60-minute videotape,briefing materials and updates on thestatus of various death row prisoners.The collective international pressuregenerated by campaigns like our ownsucceeded in gaining clemency for theSharpeville Six, although all receivedlong jail sentences.

During 1989, death penalty issuescontinued to arise. The Project publicized the imminent executions of agroup of political activists known as theUpington 14, sending letters calling forclemency to every member of Congress,to the State Department, and to theSouth African Government. As with theSharpeville Six, the American Government opposed the use of the deathpenalty against the Upington 14.

During 1988 and 1989, over 300South African groups opposed to thedeath penalty joined the Save thePatriots Campaign. The campaignoriginally focused on political prisoners on death row, but now extendsto all prisoners because, "Most ofthose awaiting executions are victimsof an unjust society and thereforeindirectly are political victims aswell." During 1989, the number ofexecutions was cut almost in half. Thedecrease was due, however, almostentirely to de Klerk's increased use ofPresidential clemency; the courtscontinued to pass death sentences atthe same rate as before. In February,1990, State President de Klerk announced a temporary suspension ofthe use of the death penalty in allcases until the laws governing it couldbe reviewed. !~


......

SOUTHERN AFRICA PROJECT FINANCES

General Program Expenditures

1988

EXPENDITURES1989

Personnel Expenses:

Salaries and Fringe Benefits (Project Director, Staff Attorney,Two Support Personnel, Researcher, Summer Students,Mise. Services)

Non-Personnel Expenses:

Travel & Meetings (Africa, Europe & United States)

Namibia Monitoring Project

Office Operations

General & Administrative

Contractual Services

Allocated Administrative Expenses

TOTAL EXPENDITURES

REVENUES

BALANCE BROUGHT FORWARD JANUARY 1

FUND BALANCE DECEMBER 31

$191,335.00

$ 13,129.00

$108,045.00

$ 3,746.00

$ 29,310.00

$ 15,652.00

$361,217.00

$404,256.00

$ 61,945.00

$104,984.00

$206,582.00

$ 5,311.00

$279,179.00

$ 81,970.00

$ 5,509.00

$ 25,050.00

$ 19,565.00

$623,166.00

$615,857.00

$104,984.00

$ 97,675.00

Legal Assistance in South Africa and NamibiaIn 1988 and 1989, the Southern Africa Project spent $561,751.00 and

$568,599.55 respectively to finance cases in South Africa and Namibia. At theend of 1988 the legal assistance account had a balance of $412,238.00. OnDecember 31, 1989, the fund balance was $893,638.00. Those funds areearmarked for use only to finance litigation in South Africa and Namibia.

l.1Iwyers' Committee for Civil Rights Under l.1Iw 41

GRANTS and CONTRIBUTIONS

The Southern Africa Project operated in 1988-89 through the generous contributions of institutional [unders,in-kind seroices and individual sponsors.

42

Institutional Funders

American Federation of State, County,and Municipal Employees

Arca FoundationBeech Street FoundationChurch of Sweden AidPatrick & Anna M. Cudahy FundJohn Deere FoundationFel-Pro Mecklenburger FoundationFirst Church in Cambridge,

CongregationalFord FoundationHarrison-Blaine of New Jersey, Inc.Hollywood Policy Center FoundationLaw Offices of Morgenstein &

JubelirerNorman Lear FoundationRichard Lounsbery FoundationJ. Roderick MacArthur FoundationMaryknoll Fathers & BrothersNew World FoundationOak Foundation (U.K.) Ltd.Pfizer, Inc.Reformed Church in AmericaSixth Presbyterian ChurchUnited Church Board for World

MinistriesUnited Methodist Church-Board of

Global MinistriesUnited Methodist Church-Women's

DivisionUnited Nations Council for NamibiaUnited Nations Special Committee

Against ApartheidUnited Nations Trust Fund for South

AfricaWorld Council of ChurchesYale Coalition Against Apartheid

Individual Sponsors

The Southern Africa Project thanks allof the 662 individuals who contributed toour work in 1988-89 and especiallyappreciates the generosity of the following:

Thomas D. and Cornelia H. BarrGeorge H. and Goler T. ButcherJohn W. DouglasW.H. and Carol Bernstein FerryConrad K. and Marsha W. HarperGeorge N. LindsayPeter P. MullenMartha W. TolmanMr. and Mrs. John B. TroubhThomas S. Williamson, Jr.

In-Kind Services from LawFirms

Arnold & PorterCovington & BurlingGold, Farrell & MarksHogan & HartsonJones, Day, Reavis & PogueSimpson Thacher & BartlettWilmer, Cutler & Pickering


.....

ACKNOWLEDGEMENTS

This report is dedicated to thepeople of Namibia, without whosecourage and determination in theface of overwhelming obstacles theNamibian elections could not havesucceeded. We salute their indomitable will to be free.

We also acknowledge the expertiseand courage of the attorneys in SouthAfrica and Namibia who, as in thepast, continued to act as correspondentattorneys for the Southern AfricaProject. The history of such defensework has shown that by consistentlyrepresenting political prisoners, theselawyers often come to be viewed bythe govemment as oppositionist,thereby exposing them to banningorders, political imprisonment, restriction orders, forced exile, and, as wehave learned this year, to assassination.

In addition, the work of theSouthern Africa Project could nothave been achieved without theassistance of many other organizations and individuals who share ourcommitment to human rights andmajority rule in South Africa andNamibia. Although their names aretoo numerous to list, we thank themfor their work, guidance and commitment.

The facts and figures cited in thisreport were drawn from a widenumber of sources published in 1988,1989, and early 1990, particularly TheWeekly Mail (Johannesburg), TheNamibian (Windhoek) and othersouthern African newspapers; TheNew York Times; The Washington Post;The Los Angeles Times; Southscan; ANCNews Briefings, press cuttings (Lon-

don); Facts and Reports, press cuttings(Amsterdam); Africa Report; TheHuman Rights Commission briefingreports (Johannesburg); variouspublications of The InternationalDefence and Aid Fund (London);newsletters and press clippings of theNamibia Communications Centre(London); South African GovernmentGazette (Pretoria); Survey of RaceRelations in South Africa, 1987/88 and1988/89, South African Institute ofRace Relations, (Johannesburg);Amnesty International reports, especially "South Africa: Restrictionsunder the State of Emergency Regulations" (AI Index: APR 53/14/89)May 1989; and Martha Moffet, Government Restrictions on the Press inSouth Africa, International HumanRights Law Group, March 4, 1987.

Namibians register to vote



43

COMMISSION ON INDEPENDENCE FOR NAMIBIA

Co-ChairsPaul Simon

Charles B. Rangel

Burke Marshall

MembersDerrick Bell

Coler T. Butcher

Silvio O. Conte

Drew S. Days, III

John W. Douglas

David A. Hamburg

Father Theodore M.Hesburgh

Nathaniel R. Jones

James A. Joseph

Helene L. Kaplan

Robert H. Kapp

Nicholas deB.Katzenbach

44

Democratic Senator from Illinois; Chair, AfricaSubcommittee of the Senate Foreign RelationsCommittee

Democratic Representative from New York;Chair, House Select Committee on NarcoticsAbuse and Control

Professor of Law, Yale University; formerAssistant Attorney General for Civil Rights,U.S. Department of Justice

Professor of Law, Harvard Law School

Professor of Law, Howard University LawSchool; former Assistant Administrator forAfrica, AID

Republican Representative from Massachusetts; Ranking Republican member, HouseAppropriations Committee

Professor of Law, Yale University; formerAssistant Attorney General for Civil Rights,US. Department of Justice

Senior partner, Covir..gton & Burling; formerChairman of the Carnegie Endowment forInternational Peace; former Assistant AttorneyGeneral

President, Carnegie Corporation of New York

President Emeritus, University of Notre Dame

Judge, United States Court of Appeals, SixthCircuit; former General Counsel of theNAACP

President, Council on Foundations; formerUndersecretary for the Interior

Of Counsel, Webster and Sheffield; member,Advisory Committee of the U.S. Secretary ofState on South Africa, 1985-86

Partner, Hogan & Hartson; Chairman of theInternational Human Rights Law Group

Senior partner, Riker, Danzig, Scherer, Hyland& Perretti; former Attorney General; formerUndersecretary of State


Abner J. Mikva Judge, United States Court of Appeals, District of Columbia Circuit

Howard E. Wolpe Democratic Representative from Michigan;Chair, Africa Subcommittee of the HouseForeign Affairs Committee

Senior Fellow, Institute for Policy Studies;former Democratic Senator from South Dakota; former Chair, Senate Subcommittee onAfrican Affairs

Republican Representative from Iowa;member, House Committees on Banking andForeign Affairs

Democratic Senator from Vermont; Chair,Senate Committee on Agriculture

Democratic Senator from Michigan; member,Senate Committees on Armed Services andGovernment Affairs

Five College Professor of International Relations, Mount Holyoke College; former Director of Policy Planning, U.S. Department ofState

Donna E. Shalala Chancellor, University of Wisconsin, Madison

Cyrus R. Vance Presiding partner, Simpson Thacher & Bartlett; former Secretary of State

Thomas Winship President, Center for Foreign Journalists;Editor Emeritus, Boston Globe

Patricia Schroeder Democratic Representative from Colorado;Chair, Subcommittee on military installationsand facilities of the House Armed ServicesCommittee

Bruce A. Morrison Democratic Representative from Connecticut;Chair, House Judiciary Subcommittee onImmigration, Refugees, and International Law

Donald M. Payne Democratic Representative from New Jersey;member, House Committees on ForeignAffairs, and Education and Labor

Donald F. McHenry University Research Professor of Diplomacy,School of Foreign Service, Georgetown University; former U.s. Ambassador to theUnited Nations

Elliot L. Richardson Partner, Milbank, Tweed, Hadley & McCloy;former Attorney General; former Secretary ofDefense; former Secretary of Commerce

Henry J. Richardson Professor of Law, Temple University; International Scholar, Joint Center for PoliticalStudies, 1988-89

Carl Levin

Patrick J. Leahy

George McGovern

Anthony Lake

Jim Leach

Lilwyers' Committee for Civil Rights Under Lilw 45

ADMINISTRATION AND OVERSIGHT

The Southern Africa Project'sactivities over the past year wereadministered on a daily basis byProject Director Gay J. McDougall;Staff Attorney Michael Prosper;Researchers Lorraine Eide and JuliaWells; Administrative AssistantPriscilla Newton; Namibia StaffDorothy Thomas and Michael Fleshman; Secretary Regina Brown andinterns Todd Larson, Pierre Englebert, John Tucker, Nathan Holt, LucChauvin and Esmeralda Thornhill.

Those activities were overseen bythe Executive Directors, Barbara R.

Arnwine (1989) and William L.Robinson (1988), and the SouthernAfrica Project Advisory Subcommittee of the Board of Trustees of theLawyers' Committee whose membersare: Brooksley E. Born of Arnold &Porter (Washington); Goler TealButcher of Howard University LawSchool (Washington); J. LeVonneChambers of the NAACP LegalDefense and Educational Fund, Inc.(New York); Ramsey Clark, formerU.S. Attorney General and nowpracticing attorney in New York City;Peter J. Connell of Aetna Life &

Casualty (Washington); Drew S.Days, III of Yale University LawSchool (New Haven); John W. Douglas of Covington & Burling (Washington); Conrad K. Harper of Simpson Thacher & Bartlett (New York);Robert H. Kapp of Hogan & Hartson(Washington); Stuart J. Land ofArnold & Porter (Washington);George N. Lindsay of Debevoise &Plimpton (London); John Payton ofWilmer, Cutler & Pickering (Washington); and Charles Runyon (NorthCarolina).

46

Commission staff meet with CommissionCounsel and Project Director. Left to right:Dorothy Thomas, EliZilbeth umdis(consuItant), Todd Larson, Michael Prosper,Gay McDougall Joan Owings

Southern Africa Project staff Priscilla Newton(seated) and Lorraine Eide Joan Owings

Executive Director Barbara R. ArnwineJoan Owings


MEMBERS OF THE BOARD OF DIRECTORS ANDTHE BOARD OF TRUSTEES

CO-CHAIRMENRobert F MullenDavid S. Tatel

SECRETARYGoler T. Butcher

TREASURERPeter J. Connell

COUNSELJerome B. Libin

EXECUTWE DIRECTORBarbara R. Arnwine

AFFILIATESBoston, MAChicago,ILDenver, COLos Angeles, CAPhiladelphia, PASan Francisco, CAWashington, DC

FORMER CO-CHAIRMENBernard G. Segal

tHarrison Tweed1963-1965

Burke MarshalltWhitney North Seymour

1965-1967t Arthur H. DeanLouis F. Oberdorfer

1967-1969John W. DouglasGeorge N. Lindsay

1969-1971Lloyd N. CutlerJohn Doar

1971-1973Richard F. BabcockRoswell B. Perkins

1973-1975tAlbert E. Jenner, Jr.Stephen J. Pollak

1975-1977Charles A. BaneThomas D. Barr

1977-1979John B. Jones, Jr.Norman Redlich

1979-1981Richard C. DinkelspielMaximilian W. Kempner

1981-1983Fred N. FishmanRobert H. Kapp

1983-1985James RobertsonHarold R. Tyler, Jr.

1985-1987Conrad K. HarperStuart J. Land

1987-1989

BOARD OF TRUSTEES*Morris B. AbramHoward J. AibelAlbert E. Arent

*Thomas I. Atkins*Richard F BabcockMario 1. BaezaClinton Bamberger

*Charles A. Bane*Martha Barnett*Thomas D. BarrSt. John BarrettRichard 1. BeattieG. d'Andelot BelinCharles W. BenderBerl I. BernhardBrooksley BornPaul A. BrestDavid R. BrinkJack E. Brown

*Tyrone Brown*William H. Brown, III*Goler Teal ButcherRobert Carswell

*J. LeVonne ChambersIrvin B. CharneWarren ChristopherFrank Cicero, Jr.Ramsey ClarkJames E. Coleman, Jr.

*William T. Coleman, Jr.*Peter J. ConnellJerome A. CooperMichael A. CooperR. John CooperEdward I. CutlerLloyd N. CutlerTalbot D'Alemberte

*James T. DanaherCharles W. Davis

*Drew S. Days, IIIEli Whitney DebevoiseArmand G. Derfner

*Sara-Ann DetermanAdrian W. DeWindPaul R. Dimond

*Richard C. DinkelspielNorman Dorsen

*John W. DouglasCharles T. DuncanVictor M. Earle, IIIRobert EhrenbardDonato A. EvangelistaJoseph D. Feaster, Jr.

*Fred N. Fishman*Owen M. FissPeter E. Fleming, Jr.Cassandra FlipperJefferson B. Fordham

*Laurence S. FordhamAlexander D. ForgerEleanor M. FoxJohn P. Frank1. Richard Freese, Jr.

*John D. FrenchEdward M. Friend, Jr.Leonard GarmentLloyd K. Garrison

*A. Spencer Gilbert, IIIMartin R. Gold

William T. GossettMichael H. Gottesman

*Erwin N. GriswoldWilliam M. Guttman

*Joan Hall*Herbert J. Hansell*Conrad K. HarperStanley P. Hebert

*Ira M. Heyman*Claude H. HoganSeth M. HufstedlerJerome E. HymanR. William Ide, IIIWarren C. IngersollHugh R. Jones, Jr.

*John B. Jones Jr.Stuart 1. KadisonEdward E. Kallgren

*Robert H. Kapp*Nicholas deB. Katzenbach*Maximilian W. Kempner*Henry 1. King*Stuart J. LandRobert M. Landis

*Jerome B. LibinArthur 1. Liman

*George N. Lindsay*John V. LindsaySanford M. Litvack

*Hans F LoeserMyles V. LynkRobert MacCrateHenry 1. Marsh IIIBurke MarshallJoseph P. MartoriGabrielle McDonald

*Prof. Robert B. McKayHarry C. McPhersonRobert W. Meserve

*Ronald S. MillerPeter P. Mullen

*Robert F Mullen*Robert A. MurphyJames M. Nabrit, Jr.

*James M. Nabrit, III*David E. Nelson*Frederick M. Nicholas*John E. Nolan, Jr.Eleanor Holmes NortonSheldon OliensisRobert P. Patterson, Jr.

*John PaytonKenneth PenegarRoswell B. PerkinsSamuel R. Pierce, Jr.

*Stephen J. PollakJ. Stanley Pottinger

*Robert D. Raven*Norman RedlichJudith ResnikCharles S. RhyneElliot 1. Richardson

*James Robertson*William 1. RobinsonWilliam D. RogersMitchell RogovinEdward W. RosstonEdwin A. RothschildCharles Runyon

*Lowell E. Sachnoff

Stephen H. Sachs*David M. Satz, Jr.Paul C. Saunders

*John H. SchaferMartin Schneiderman

*Bernard G. SegalJerome G. Shapiro

*Jerome J. ShestackArthur D. ShoresMcNeill SmithOtis M. Smith

*Asa D. SokolowNicholas U. Sommerfeld

*David S. TatelGray ThoronRandolph W. Thrower

*John E. TobinMichael Traynor

*Marna S. Tucker*Harold R. Tyler, Jr.Cyrus R. VanceJames Vorenberg

*Herbert M. WachtellJohn W. WadeTogo D. West, Jr.Francis M. Wheat

*Roger WilkinsHoward P. WillensJohn Taylor Williams

*Karen Hastie Williams*Judith A. Winston

*Board of DirectorstDeceased

l.J.lwyers' Committee for Civil Rights Under l.J.lw 47

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