A challenging return to Bandung

Half-a-century ago, Indonesia hosted an important gathering that sought to make a contribution to the ordering of the system of international relations in the period following the end of the Second World War and the onset of the Cold War.

This was the first Asian-African Conference, which was held in Bandung, Indonesia on 18-24 April 1955. Its Final Communiqué said that the Conference had been "convened upon the invitation of the Prime Ministers of Burma, Ceylon, India, Indonesia and Pakistan", and was attended by an additional 24 African and Asian countries.

Fifty years later, on 20-24 April 2005, Indonesia co-hosts with South Africa the second Asian-African Conference, taking place in Jakarta and Bandung.

The 1955 Communiqué said that, "The Asian-African Conference considered problems of common interest and concern to countries of Asia and Africa and discussed ways and means by which their people could achieve fuller economic, cultural and political cooperation."

It therefore took decisions covering:

• economic cooperation;
• cultural cooperation;
• human rights and self-determination;
• problems of dependent peoples; and,
• promotion of world peace and cooperation.

The Conference declared "its conviction that friendly cooperation in accordance with (Principles it adopted) would effectively contribute to the maintenance and promotion of international peace and security, while cooperation in the economic, social and cultural fields would help bring about the common prosperity and well-being of all."

In its Declaration on the Promotion of World Peace and Cooperation, the Conference addressed the issue of nuclear disarmament and world peace. It called on all States to cooperate "especially through the United Nations, in bringing about the reduction of armaments and the elimination of nuclear weapons under effective international control. In this way, international peace can be promoted and nuclear energy may be used exclusively for peaceful purposes."

It went on to state that, "The right of self-determination must be enjoyed by all peoples, and freedom and independence must be granted, with the least possible delay, to those who are still dependent peoples. Indeed, all nations should have the right freely to choose their own political and economic systems and their own way of life, in conformity with the purposes and principles of the Charter of the United Nations."

It adopted the various Principles to which we have referred, which included:

• respect for fundamental human rights and the UN Charter;
• respect for sovereignty and territorial integrity of all nations;
• non-interference in the internal affairs of another country;
• recognition of the equality of all races and nations, large and small; and,
• settlement of international disputes by peaceful means.

Naturally, the Conference paid particular attention to the situation then prevailing in our country and elsewhere on our continent. In this regard, it "deplored the policies and practices of racial segregation and discrimination, which form the basis of government and human relations in large regions of Africa and in other parts of the world. Such conduct is not only a gross violation of human rights, but also a denial of the dignity of man.

"The Conference extended its warm sympathy and support for the courageous stand taken by the victims of racial discrimination, especially by the peoples of African and Indian and Pakistani origin in South Africa; applauded all those who sustain their cause; reaffirmed the determination of Asian-African peoples to eradicate every trace of racialism that might exist in their own countries; and pledged to use its full moral influence to guard against the danger of falling victim to the same evil in their struggle to eradicate it."

The Bandung Conference was a direct product of the victories scored by the peoples of Africa and Asia in the historic struggle against colonialism and imperialist domination. This created the possibility for the once dependent peoples to come together to decide how they should use their collective strength to advance their common aspirations.

Our movement, the ANC, sent a message to the Bandung Conference through its then Acting Secretary General, Oliver Tambo, in which it said:

"To the vast majority of the Asian-African peoples (the Conference) will certainly be a source of inspiration. It will be regarded as paving the way for good things to come, and a step in the direction of meeting the aspirations of the vast majority of mankind, particularly the oppressed peoples of Asia and Africa...

"The significance of this Conference, therefore, lies in the fact that the sponsors and the people who are meeting have themselves been for centuries the subjects of exploitation and foreign domination by Western colonial powers, and have now decided to take the destiny of their people and their countries unto themselves...They want to see the permanent independence of their newly-found democracies and the freeing of those who are still under the yoke of foreign domination and racial oppression.

"Another significant point for us in South Africa is the fact that this very important Conference meets in Indonesia, the original home of the Cape Malays, one of the oppressed national minorities in South Africa, whose forefathers came to this country as slaves brought by the Dutch colonisers, whose descendants have forcibly installed themselves as masters of South Africa."

To this, ANC President Albert Luthuli, added: "We are living in a much troubled world which someone has aptly called a 'mad house'. My prayer and wish is that this Conference might help to contribute in bringing sanity to this mad world of ours which is suffering from a paralysing sickness engendered by fear and jealousy among nations."

Commenting on the strategic challenge facing the Bandung Conference, President Sukarno of Indonesia said: "Perhaps now more than at any other moment in the history of the world, society, government and statesmanship need to be based upon the highest code of morality and ethics. And in political terms, what is the highest code of morality? It is the subordination of everything to the well being of mankind. But today we are faced with a situation where the well being of mankind is not always the primary consideration. Many who are in places of power think, rather, of controlling the world...

"What can we do? We can do much! We can inject the voice of reason into world affairs. We can mobilise all the spiritual, all the moral, all the political strength of Asia and Africa, 1,400,000,000 strong, far more than half the human population of the world, we can mobilise what I have called the Moral Violence of Nations in favour of peace. We can demonstrate to the minority of the world which lives on the other continents that we, the majority, are for peace, not for war, and that whatever strength we have will always be thrown on to the side of peace."

The leaders of these one-and-a-half billion people, constituting more than half the human race, included giants of the world anti-imperialist and anti-colonialist struggle, for the right to self-determination and independence, such as Sukarno of Indonesia, Chou En Lai of China, Jawaharlal Nehru of India, Mohamed Ali of Pakistan, Pham Van Dong of Vietnam, U Nu of Burma, Norodom Sihanouk of Cambodia, and Abdel Gamal Nasser of Egypt.

Leaders of our own movement, Moses Kotane and Maulvi Cachalia, also attended this historic Conference as observers. Not unexpectedly, the apartheid regime had refused to give them passports to enable them to travel to Indonesia. However they managed to reach London, where the Indian High Commission gave them travel documents which enabled them to visit not only Indonesia, but also Egypt, India, Poland and China.

Their participation at the Bandung Conference defined our movement as one of the world motive forces responsible for the institutionalisation of Afro-Asian solidarity, the establishment of the Non-Aligned Movement, the birth of the concept and practice of South-South cooperation, and the search for equitable North-South relations. It also underlined the internationalist character of our movement, which places us firmly and permanently among the global forces fighting for progressive change.

Leaders of our liberation movement represented the people of South Africa in Bandung in 1955, as observers. Members of our elected government, who will also attend as co-sponsors and co-hosts of the equally important second Afro-Asian Conference, will represent our people in Bandung in 2005.

As we return to Indonesia, no longer an oppressed people, having freed ourselves from the "policies and practices of racial segregation and discrimination...(and the) denial of the dignity of man", which were denounced by the first Bandung Conference, we recall also the comments made by Oliver Tambo about the special and long-standing bonds between the peoples of South Africa and Indonesia.

These are bonds of shared oppression and a shared struggle for liberation. Oliver Tambo spoke about the Indonesian slaves that the Dutch brought to South Africa during the period when Holland occupied Indonesia and the Cape as a colonial power.

We are all familiar with the special relationship that exists between our country and India. This came about as a consequence of the transport of indentured labourers from India to South Africa and the emergence of a large Indian-South African section of our population, and, of course, the political apprenticeship of Mahatma Gandhi in our country.

Arguably, we have not paid similar attention to the special relationship between our country and Indonesia. As Oliver Tambo said, the Indonesian slaves that were brought to our country by the Dutch and their descendants constitute an important and valued component part of our population.But among those exiled to our country were freedom fighters who, like our people, struggled for freedom from Dutch rule. One of these was the Indonesian national hero, who is also our national hero, Sheik Yusuf al-Khalwatial-Maqasari, who arrived in the Cape as a prisoner in 1694, accompanied by 49 other freedom fighters. A religious scholar, leader, patriot and member of the nobility, Sheik Yusuf fought alongside Sultan Ageng in Western Java to resist Dutch colonisation. Ultimately their liberation forces were defeated. The Dutch persuaded Sheik Yusuf to surrender, promising to pardon him. However, on his surrender, he was detained and exiled to Colombo, Sri Lanka. The Dutch later moved him to the Cape. He died in 1699 a defiant revolutionary, and was buried in the area in the Western Cape called Macassar, after the area in Sulawesi, Indonesia, from which he came.

We have therefore returned to the homeland of Sheik Yusuf inspired by the example he set more than three hundred years ago, which informed the resolve and the objectives of the leaders who met at the Bandung Conference that took place in the country of his birth, about 250 years after he died in our country, far away from his native land.

The peoples of Asia blessed us with the presence in our midst of the outstanding leaders and human beings, Sheik Yusuf of Indonesia and Mahatma Gandhi of India. The leaders of Indonesia and India will be present at the second Asian-African Conference, as they were present at the first, which was held in Bandung.

Together with them, and the more than 100 other leaders from Africa, Asia and Latin America who will attend the second Asian-African Conference, we have a responsibility to agree to the practical actions that will demonstrate our loyalty to what Sheik Yusuf and Mahatma Gandhi stood for. And what they stood for was the genuine liberation of all humanity - liberation from national oppression, from the denial of human dignity, from poverty and want, from underdevelopment.

As President Sukarno said, we have a continuing responsibility to "mobilise all the spiritual, all the moral, all the political strength of Asia and Africa...(for the) subordination of everything to the well-being of humankind."

And as Oliver Tambo said, the new Bandung Conference must "pave the way for good things to come, and (constitute) a step in the direction of meeting the aspirations of the vast majority of mankind, particularly the oppressed peoples of Asia and Africa."

We must "bring (the) sanity to this mad world of ours" for which Chief Albert Luthuli called, addressing, among other things, the insanity in terms of which billions continue to be afflicted by poverty, while the resources exist in human society to eradicate this poverty. We must bring about the sanity that would dictate that power should be used to advance the well being of humankind, and not abused as an opportunity to "control the world", with no regard for the fundamental interests of the poor and marginalised, whose representatives will meet in Jakarta and Bandung at the second Asian-African Conference.

Note from the Editor

In his Letter in ANC TODAY, Vol 5 No 1, President Mbeki quoted remarks made by late ANC President Oliver Tambo in 1971, commenting on statements made by Mrs Helen Suzman during a visit to Zambia, when she was a member of the apartheid parliament of the day.

Among other things, while speaking out against the system of apartheid, Mrs Suzman had also opposed the imposition of sanctions against apartheid South Africa and our resort to armed struggle. She was convinced that our movement had no possibility to defeat the apartheid regime.

Responding to these views, Oliver Tambo said: "This sweet bird from the blood-stained south flew into Zambia and sang a particularly sweet song...I am in favour of change; I am clearly in favour of change, but determined to prevent change".

A member of the ANC has now written to our President to suggest that we should present a more balanced view of what the late Oliver Tambo thought of Mrs Suzman. In this context, he cites what Tambo said about Mrs Suzman when he welcomed a Five Freedoms Forum delegation, which met the ANC in Lusaka in 1989.

This member of the ANC writes: "At the start of the welcoming address to the delegates, Comrade Oliver Tambo extended a 'warm welcome, with great felicitation, (to) the many luminaries from the broad anti-apartheid front who grace our gathering. There are many among us who deserve a special accolade, including parliament's unfading star, the indefatigable Mrs Helen Suzman'. "

He writes that, "to warm applause from all the delegates, Mrs Suzman was called to the rostrum and invited to sit there for the remainder of the opening session".

We thank the member of the ANC, who was part of the Five Freedoms Forum delegation, for reminding us of these 1989 proceedings in Lusaka. We unequivocally endorse his appeal to us that our reporting and commentary should be balanced, truthful and fair. In this regard, we fully associate ourselves with the comments made by our late President, Comrade Oliver Tambo.

Judiciary

Shrill chorus tries to obscure meaningful debate

While the government and the judiciary are engaged in meaningful dialogue about proposed legislation to improve the functioning, accessibility and transformation of the courts, a shrill chorus of vested political interests has made false and misleading claims both about the process and the intentions of the ANC.

Under a front page headline, 'Leave us alone!', the 'Sunday Times' reported that: "Judges unite to fight government plan to change Constitution and take away their independence".

A news agency, Reuters, reported that judges objected to "a government bid to exercise more control over the judiciary through a constitutional amendment, saying such a change would threaten their independence".

The report quoted a law professor at the University of the Witwatersrand, David Unterhalter, as saying: "I think the government is clearly interested in controlling as much power as possible". As if to underline the point, the report said the draft law being considered by the ANC marks the first time the party has tried to use its two-thirds parliamentary majority to change the constitution - resorting to the 'two-thirds gevaar' tactic even before any proposed amendments have been put before parliament for consideration.

Not to be outdone by the media, the Democratic Alliance (DA) released a discussion document entitled 'The DA's Judicial Review: Threats to Judicial Independence in South Africa '. According to a statement by a DA spokesperson on justice, the discussion document "demonstrates that the objective of the ANC government's repeated attacks on the Judiciary over the past few years is to promote a bench that is more sympathetic to its ideology and policy programme of 'transformation' and to exert implicit pressures on judges to make ruling that accord with its policy agenda."

So what did the ANC-led government do to elicit such strong reaction, earning itself disapproving front page headlines and a withering 'discussion document'?

Consultation

The proposed legislation that was the subject of discussion and consultation at a colloquium of government and judges last week has been several years in development, prompted by the need to rationalise the country's courts into a single judiciary and improve their management, functioning and accessibility. As the process of developing these draft laws unfolded, further issues were raised through consultation, including deliberations and hearings of the National Assembly's justice portfolio committee and a similar justice colloquium held in 2000.

The current set of draft bills, including a constitutional amendment bill, aims, among other things, to improve the functioning of justice by rationalising the superior courts; and to strengthen the administration and fairness of justice by providing for judicial training and a formal complaints mechanism.

Precisely because the ANC-led government is committed to the independence of the judiciary as it enshrined in the constitution, it initiated a process of consultation and dialogue with the judiciary to develop and refine the proposals. The colloquium held last weekend was an important and valuable part of that process.

The constitution requires that: "Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts." It is because of this responsibility that the ANC-led government has initiated these proposed changes and has engaged the judiciary to ensure that any reservations can be constructively dealt with.

Contrary to media reports, senior judges have expressed their support both for the intent of the draft legislation and for the process by which it is being developed.

In a statement this week, Chief Justice Arthur Chaskalson said: "During the colloquium, representatives of the judiciary made it clear that they supported, and regarded as urgent, the establishment of an institution for judicial education, and the passing of legislation to make provision for a formal complaints system and the rationalisation of the Superior Courts."

However, he noted, some concerns were raised about certain provisions of the draft legislation, including provisions which they considered to be inconsistent with the separation of powers and the independence of the judiciary. Both the judges and the government agreed to continue dialogue on these issues.

The fact that the ANC-led government created the opportunity for judges to engage government on the proposed legislation; that judges were able to voice their concerns; and that government remains committed to addressing those concerns, should not be a cause for alarm. It should instead act as confirmation that South Africa's democratic constitutional order is in good shape.

Transformation and independence

Considering the facts about the proposals put forward by government and the process being followed, what could account for the feverish response of the DA and other commentators?

The DA argues that the ANC is undermining judicial independence by "advancing an ideologically partisan view of judicial transformation that is not sanctioned by the Constitution"."For the ANC, 'transformation' is not simply about encouraging equal opportunity across gender and racial lines, it also involves the establishment of a judiciary that is more executive-minded and accountable to the ruling party rather than the Constitution."

In making this suggestion, the DA is revealing its real intent on this matter - to campaign against the transformation of the judiciary, just as it continues to campaign against transformation in all areas of South Africa's public life. It seeks to project judicial transformation and judicial independence as diametrically opposed concepts. Thus progress in transformation is presented as an encroachment on the independence of the judiciary, and calls for transformation are described as 'repeated attacks' on the judiciary.

Yet for the ANC, the task of transforming the judiciary in no way compromises its independence or integrity. If anything, it enhances its integrity by ensuring that it is more representative of the South African people and more capable of safeguarding their interests.

Speaking at the ANC's 2002 National Conference in Stellenbosch, President Thabo Mbeki said that part of the task the country faces further to entrench our democratic system is the ongoing work to transform the judiciary, including the realisation of the objective of equitable representation of both black people and women."The challenge we face is to ensure that the South Africans who serve in the judiciary act to implement the letter and the spirit of our Constitution and laws impartially, and without fear or favour. The adage remains relevant, that justice must not only be done, but it must also be seen to be done.

"It also seems obvious that one of the issues we should discuss is the building of a pool of potential black and women candidates for the judiciary and magistracy. The objective situation suggests that we must attend to this challenge in a conscious and consistent manner. If we fail to do this, the historic discrimination referred to in our constitution will guarantee that the racial and gender imbalances will, for the foreseeable future, remain unchanged.

"We can neither afford nor allow the situation that our judicial system loses credibility with our people as a whole, arising out of our failure openly to consider the challenges that face the judiciary and the magistracy in the context of the national transformation process.

"At the same time, we must state this unequivocally that the ANC remains firm in its belief in the rule of law and the independence of the judiciary as set out in the Constitution, as well as the respective roles of the legislative and executive authorities."

Consistent policy stance

When the ANC reiterated this view in its 2005 January 8th Statement, it was described (again by the 'Sunday Times') as an attack on white judges. Others said the ANC was trying to threaten and intimidate the judiciary into compliance with its will.

Yet, as the ANC indicated in a statement at the time, the comments on the transformation of the judiciary in the January 8th Statement "are consistent with the long-standing policies of the ANC, which have time and again received the support and endorsement of the South African electorate. The need for the judiciary to reflect broadly the racial and gender composition of South Africa is explicitly referred to in the South African Constitution."

The ANC's policy positions on the judiciary in South Africa are well documented. In 'Constitutional Principles for a Democratic South Africa', adopted in April 1991, the organisation said: "Without interfering with its independence, and with a view to ensuring that justice is manifestly seen to be done in a non-racial way and that the wisdom, experience and judicial skills of all South Africans are represented on the bench, the judiciary shall be transformed in such a way as to consist of men and women drawn from all sectors of South African society."

In 'Ready To Govern', the ANC's policy guidelines for a democratic South Africa adopted in May 1992, it said: "The bench will be transformed in such a way as to consist of men and women drawn from all sections of South African society. This will be done without interfering with its independence and with a view to ensuring that justice is manifestly seen to be done in a non-racial and non-sexist way and that the wisdom, experience and competent judicial skills of all South Africans are represented."

At its 2002 National Conference in Stellenbosch, the ANC resolved to "...expedite the transformation of the judiciary, to create a more representative, competent, sensitive, humane and responsive judiciary."

If the ANC has been consistent in its support for the independence of the judiciary, and the need for its transformation, the DA - and those who share their political objectives - have been consistent in their efforts to oppose and delegitimise meaningful transformation across all facets of South African society. As they intensify their efforts, the ANC-led government and the judiciary will continue to work together in the important tasks of transforming the judiciary and safeguarding its independence and integrity.

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