Possibly because I had stood up to the command, at the end of my two-year period of national service I was promoted to the substantive rank of captain. I was made to understand that I was the only conscript in my intake to have received such a promotion. There still remained the obligation to do eight 30-day camps, to be served annually, which was to make life and practice more complicated than things already were.
My two-year stint had seen my political views undergo a change from liberal to a radical rejection of the status quo. I was firmly against the war and considered South Africa’s presence in Namibia illegal.
The firm that had defended Mushimba and his fellow defendants was Lorentz and Bone. It was the only firm that defended political activists at the time. They had a vacancy in January 1980, which arose following the departure of Anton Lubowski, a university friend since 1973. Unlike me, he had put his compulsory military conscription behind him before going to university. While I had been caught up in mine, he had completed his two years of articles of clerkship (the training period to qualify as an attorney) at the firm, but had not passed the attorneys’ admission exam within those two years. He decided to do pupillage as an advocate instead. He later became a prominent member of Swapo, although he was then very active within the Namibia National Front (NNF), which was also firmly opposed to the apartheid regime, its policies and its favoured politicians who formed part of the ethnic and homeland structures. Anton strongly recommended articles at the firm because of the political work being done there and its potential. Our friendship grew stronger in the years that followed.
On 1 March 1980, I started my two years of articles with Lorentz and Bone, articled to the senior partner, John Kirkpatrick, the leading commercial lawyer of his time in the country. He ably represented the leading transnational mining concerns operating in Namibia. The firm was hierarchical but liberal. The partners all opposed the apartheid policies imposed upon Namibia and believed in defending those who opposed the system. That was exceptional during those times. The overwhelming majority of the white community, then comprising about 8 per cent of the total population, strongly supported the apartheid state and the imposition of its policies on Namibia. The partners in Lorentz and Bone paid for their principles as many conservative white clients took away their business and caused their institutions to do so as well. For instance, the municipality of Windhoek, then dominated by white Afrikaners, took away much of its lucrative property work from the firm as a consequence of our representation of Swapo insurgents and activists in political trials.
During my initial two and a half years with this firm, I represented Swapo activists in their brushes with the law. I had developed a special interest in detention without trial and the myriad laws that facilitated indefinite detention, typically without any access to lawyers or family. I had seen that opponents of the apartheid state in Namibia were seldom put on trial. Instead, the authorities detained the regime’s opponents for lengthy periods. No major political trials took place during this period or during in the following year while I was pursuing postgraduate studies on scholarship in the United States. There was, I suppose, hardly any need or incentive to put people on trial if they could be neutralised by detaining them indefinitely. As John Dugard explains in his seminal work Human Rights and the South African Legal Order,15 the South African state would resort to trials of dissidents primarily for propaganda purposes – for internal as well as external consumption. This was also the approach in Namibia (by the self-same security apparatus) – a fastidiousness in going to great lengths to employ the powerful array of punitive measures at their disposal and to be seen to be relying upon the law in dealing with dissidents.
The distance from the immediacy of practice that a year’s postgraduate study in the US had afforded me (in 1982/3) gradually gave rise to a realisation that I should shift my focus towards finding ways to mount assertive challenges to detentions and oppressive practices, seeing that my clients would seldom face trial. Intense critical discourse with my fellow students from diverse legal systems and backgrounds assisted in crystallising my ideas.
Trials under the Terrorism Act were heavily weighted against defendants (and justice). The accused were invariably detained for several months without access to lawyers or their families. This meant that torture and ill treatment, then routine, could and would mostly go undetected. Witnesses, often accomplices or informants, were also detained and promised release if their testimony satisfied their incarcerators. The statutory offence of terrorism was framed widely and also included an inverted burden of proof. The effect was that defendants would need to prove their innocence, instead of the universally accepted standard of guilt being established beyond reasonable doubt.
The composition of the courts also undermined notions of fairness. Some, but not all, of the judges who were selected to preside in these earlier cases in Namibia had been ardent supporters of apartheid, rewarded for their loyalty with appointments as judges to the court in Windhoek.
There would be little prospect of a fair trial under these circumstances. This was to change in the 1980s, however, with judicial appointments increasingly made from the ranks of local lawyers, making a significant difference.
The inherent unfairness of political trials did not mean that defendants should go unrepresented. As long as they and their families wanted representation, which they did, there was no doubt in my mind that they should have it. Their defence was to be seen within the overall context of an unjust legal system, and the need to expose this. Necessary as it was, defence work in infrequent trials was not enough.
My focus was to shift away from defence work to finding ways to tackle detentions head-on instead of waiting for the unlikely occurrence of our clients being charged.
I no longer saw my role as primarily a defence lawyer. It was rather the pernicious system that should be put on its defence, in its various facets, by seeking to use the law to bring about accountability. A more assertive stance was required against detention laws and those stifling dissent and delaying progress to self-determination.
This book concerns some of the cases and work I was privileged to become involved in over the years, in this context of pursuing a more assertive approach, which would require adapting at times to meet the impact upon the law of increasing militarisation and the authorities’ increasing subversion of the law. This despite the attempt to mask this trend by packaging it in the veneer of a more benevolent multiracial front under the Interim Government (IG) installed by Pretoria in mid-1985. The inclusion of a bill of rights in its empowering proclamation promised much, but delivered no real change in human rights abuses and the fundamental inequality that apartheid policies brought about and whose core remained firmly in place with the separate ethnic administrations and structures until the eventual implementation of the UN peace plan in 1989, which coincided with the demise of P.W. Botha and, eventually, of the malevolent military edifice that surrounded him. The cases illustrate how the ultimate control in Namibia remained with the security establishment, whose abuses intensified and later became more sinister, resorting to covert criminal conduct. The first of these cases following my return from the US concerned uncovering the secret internment without trial for some six years of over 100 Swapo cadres captured in Angola in the course of Operation Reindeer. It was to be a watershed, and an ominous portent of what was to come.
1
Secret – and indefinite – internment
Late one night in mid-February 1984, there was a quiet yet persistent knock at the door of the small garden cottage I rented in suburban Windhoek, a creatively converted double garage at a discreet distance from the main house. My friend and colleague, Hosea Angula, and Samson Ndeikwila of the Council of Churches in Namibia (CCN) quickly entered, accompanied by another man, introduced as Bennie Shilongo, who slid in behind them. He looked around uneasily. His eyes continually