11 October 1989
It has been our happy lot to defend a great number of political prisoners in South Africa, and it is with great appreciation that I wish to thank you for asking me to speak on the twenty-seventh occasion on which the United Nations has called for the release of political prisoners in South Africa.
His Excellency the President of the Assembly, and you yourself, Mr. Chairman, have spoken of the frustration that resolutions passed way back in 1963 and thereafter apparently fell on deaf years as far as the Government of South Africa is concerned. I want to assure you that, however plugged the ears of the South African Government may have been, your resolutions, your public statements, your identification with those in distress in South Africa, have not fallen on deaf ears among the people of South Africa. You will permit me to relate one small personal experience.
The very day after the eleventh of October 1963, when the momentous resolution was passed by the General Assembly almost unanimously and it was reported on the front page of our local newspaper with banner headlines, we took that newspaper to Mr. Nelson Mandela, Walter Sisulu and the eight other defendants in the Pretoria prison. At the time, it was not imprisonment that we, as their lawyers, feared: it was the distinct possibility of the loss of their lives. They looked at the headline and said, "We are not alone." Although they did not say so expressly, one had the feeling that, because of what was said by the United Nations, the possibility, or probability, of their losing their lives was substantially lessened.
This is for me an emotional moment to be here, shortly after having read in the newspapers of the impending release of Mr. Walter Susulu, Mr. Ahmed Kathrada, Mr. Andrew Mlangeni, Mr. Raymond Mhlaba, Mr. Wilton Mkwayi and Mr. Oscar Mpetha - all of whom, together with others, I had the privilege of knowing as clients. I hope that it was only a mistake that the newspaper omitted the name of Mr. Elias Motsoaledi. Their release is indeed most gratifying and, although I have no specifically expressed mandate on their behalf, I am sure that I speak for them, their families and all political prisoners in appreciating what the world body has done for political prisoners in particular and the people of South Africa in general.
There are many more political prisoners. President De Klerk has promised justice for all. His credibility will be placed at issue if he stops there and the gaols remain full of political prisoners, who, after all, did the things that caused them to be imprisoned because of their abhorrence of apartheid, which President De Klerk now says he wants to dismantle.
Many have been sentenced to death for performing acts with the same motive. There must be a society in South Africa in which, above all, there are no political prisoners, because everyone enjoys the rights for which he has struggled. The vast majority of prisoners in South Africa, however, have become prisoners without having been tried. The Chairman of the Committee of Trustees referred to the use of the judicial system. Perhaps our biggest complaint is the by-passing of the judicial system.
South Africa is almost alone in the world in not having adopted the Universal Declaration of Human Rights, of 1948. Had the Government done so and shown any respect for the Declaration's provisions it would not have promulgated regulations empowering any member of the police force, the army or the prison service to detain any person without warrant, in accordance with the terms of the Emergency Security Regulations for 30 days. That period may be extended by the Minister of Law and Order for as long as he deems fit or for as long as the regulations remain in force. A person who will address the Committee shortly after me has suffered that fate. Almost no legal proceedings may be instituted against the authorities that have detained him to secure the release of a detainee. Access to the detainee by relatives, friends, independent doctors and lawyers is subject to the authorities' discretion, as is information relating to them.
We, as lawyers, whether attorneys, advocates or judges, have been side-lined by the exclusion of the judicial process by the regulations. Law and justice have become the mere extension of the will of the Security Officer or the Minister. None of us can give much help or hope to those in distress. There is no guarantee that the innocent will not be gaoled, nor any certainty as to how long the person adjudged guilty by a policeman and the Minister will remain in prison. The convicted prisoner can at least count the days or years. The detainee is driven to despair by the uncertainty.
Thousands of men, women and children have been so detained. Hundreds have put, and some are still putting, their lives at risk by going on hunger strike. The Minister, Mr. Adriaan Vlok, has said that the authorities are committed to dealing with the situation in a humane and civilized manner as prescribed by international norms and standards. I am sure that I will find substantial agreement in the Committee when I say that the international community, led by the United Nations, knows of no humane or civilized manner in which people are detained without trial. The international norm is enshrined in articles of the Universal Declaration of Human Rights, which provide that:
"No one shall be subjected to arbitrary arrest, detention or exile." (General Assembly resolution 217 (III), art. 9)
"Everyone is entitled in full equality to a fair and public hearing ..." (ibid., art. 10)
"Everyone ... has the right to be presumed innocent ..." (ibid., art. 11)
Detention without trial has been with us in terms of various enactments since April 1960. Over 70,000 men, women and children have been so detained. Apologists for the system say that it is necessary to maintain law and order. Far from solving any problems, this action has created others: deaths in detention, physical and mental harm to its victims, ignominy for some members of the medical profession, and undue stresses in the administration of justice. Above all, it has embittered those detained - not, one hopes, to the extent of causing them to decide irrevocably to seek vengeance while locked up and isolated by those they consider to be political adversaries.
The solution is surely not to detain more but to satisfy the demands for political justice loudly proclaimed by the majority of the people in the country of their birth. States of emergency, detention without trial, gaol deaths, death rows and the denial of meaningful political rights, not its critics, have isolated South Africa for the last 40 years. We in South Africa yearn to become members in good standing of the world's community of nations. we regret that our laws and practices make that impossible.
Political prisoners in South Africa appreciate the concern of the world, especially the United Nations. How much more miserable might their condition be if the world did not care? Let us hope that the day when there are no political prisoners in South Africa is near.