It struck me that this amendment had probably been included in a bid to legalise the incarceration of the Mariental detainees captured in Angola, who became known as the Cassinga detainees – a slight misnomer as they were captured at Chetequera but as part of Operation Reindeer, which was primarily directed at Cassinga.
Rumours of their capture and subsequent detention had circulated for some time. But these were not confirmed by the SADF or the authorities. Indeed, the detainees were held at a secret location. Shortly before I left for my studies in the US in 1982, there was some talk of them being held in an internment camp near Mariental, about 270 km south of Windhoek. These accounts started surfacing after family contact with detainees was eventually permitted, at first by letter in 1981 and later in the form of visits in 1982. I later discovered that these forms of contact had been brokered by the good offices of the International Committee of the Red Cross (ICRC). But I had not received any direct corroboration of this when I left Namibia for my studies in mid-1982.
Attendance at the New York seminar was rewarded with refreshments afterwards. That was the best part, as I suppose it usually is at events like these. I did not need much persuasion to loiter a little over the tepid American beer on offer – not just because I was putting off braving the cold, grey spring afternoon to make my way back by subway to Penn Station to catch my train back to Boston. I was missing home and enjoyed the friendly reinforcement from a group of exiled Swapo members and officials. Their longing for home was understandably much stronger than mine. I could, after all, go home on completion of my studies; their homecoming seemed an incomparably remote and distant prospect. One of their number in particular stood out. He was Swapo’s then United Nations representative, Theo-Ben Gurirab, a charming and erudite man, who had spoken earlier.
Exiled Swapo members were eager for news and more recent impressions of the situation at home. Their generous encouragement in my human rights work was unequivocal, their acceptance reaffirming. But my commute back to Boston beckoned.
In the course of extended farewells and exchanging contact details, a striking African-American woman purposefully joined our circle and introduced herself in a discernible southern drawl as Gay McDougall. She wanted a quick word. Gay, too, needed to travel, but in the opposite direction – back to Washington, DC, where she worked for a respected civil rights organisation, the Lawyers’ Committee for Civil Rights under Law. Gay directed its Southern African Project, which supported those engaging in legal challenges to the South African regime. She came quickly to the point and offered her collaboration and financial support to defend those on trial. She invited me to visit her office before returning home after my studies. I spoke of my growing interest in making challenges to detentions and the laws that facilitated them, given that so few people were put on trial. I updated her on the breakdown of law in the northern areas of Namibia, with security forces acting with impunity there. Her eyes lit up when I spoke of the need to bring about some accountability for the deaths, detentions and disappearances that regularly occurred in those areas.
Our frenetic chatter continued as we strode together towards the nearby subway station. I referred to the 1979 amendment to AG 9 enacted after the Mariental detainees were already in detention, and thus questionable. I suggested to Gay that her organisation may wish to support investigating a challenge to the legality of their detention financially. It seemed viable; Gay enthusiastically agreed.
I would only return to Namibia after the summer, however, as I had landed a position of summer associate with Ropes and Gray, a leading law firm in Boston. Before eventually returning to practice at Lorentz and Bone in Windhoek in October 1983, I had a final conversation with Gay about the logistics of investigating a challenge. Gay understood that communication with her after my return home would of necessity be minimal until an application had been served. This was because telephone lines were invariably tapped and correspondence intercepted of those engaged in work against the apartheid regime. We had always suspected this and were to receive proof a few years later when my friend and fellow activist, Gwen Lister, discovered a letter in her postbox, marked ‘top secret’, from the head of the South African Police to notify the Postmaster of Windhoek of the authorisation to intercept her mail. When Gwen made this public, she was arrested and detained over a weekend on charges of contravening the Official Secrets Act for making known a classified communication.22 It seemed like something straight out of Kafka. The bizarre charges were dropped six weeks later.
Upon my return, I set about making enquiries, seeking the names of detainees who had been captured in Angola and the whereabouts of their relatives. An activist Catholic priest, Father Stegmann – who consistently provided staunch and invaluable support in detainee work – declined to give any information. He had become aware of the detentions and the location and even knew some of the names of detainees and their relatives. His church was assisting the ICRC in putting relatives in contact with the detainees. Some had even visited their detained relatives through the church’s intermediation. He had been sworn to confidentiality on the issue. It had been a condition of the church’s participation in arranging the visits. He was concerned that the privileges and the improved conditions that the ICRC had painstakingly negotiated over a long period may be withdrawn and future visits refused if I were to start stirring. A highly principled person, he considered himself bound by the oath of confidentiality he had taken. Through my work for detainees, I had also come to know the ICRC’s representative well. He confirmed the detentions too, but could not divulge any further information or provide any leads because of his position.
A close colleague on matters of this nature at the firm and a very good friend, Hartmut Ruppel, also voiced his concern that my enquiries and activism on the issue may have adverse consequences for the detainees themselves along the lines put forward by Father Stegmann, who had obviously enlisted Hartmut’s support to prevail upon me to drop my enquiries in the best interests of the detainees.
I understood why they felt this way. The security forces were often vindictive to detainees when efforts were made to obtain access to them or when there were petitions for their release. Detainees were also appallingly treated, especially in the outlying areas where there was little or no supervision and often no restraint. Conditions there were frequently makeshift and routinely subhuman. This was also the case, as I later discovered, for the detainees in Mariental. The conditions were grim for the first few years but were vastly improved from 1981 when they were moved to a new camp nearby with better facilities. This coincided with the involvement of the ICRC.
Although I respected their concerns about jeopardising the gains in detainee access and treatment, the risk of setbacks was, I believed, well worth the reward of the resultant exposure – and a possibility, even, of success. Their detention was indefinite, without even the remotest prospect of release after more than five and a half years of secret incarceration. The issue of their release would not, in my view, receive attention unless their plight was exposed and pressure generated on the issue. The detentions would also need to be justified as a matter of law.
My colleague Hosea Angula, who was doing his articles with us at the time and was later to make history as the first Oshiwambo-speaking person to be admitted as a lawyer in Namibia, was, in contrast, unqualified in his support of a challenge to the detentions. From then on, we drove the legal action together. We had become close friends from his first year at university when he had worked in my office as a student assistant during his long vacation at the end of that year. This was in the first year of my articles. He had applied for vacation work. He was interviewed by one of the partners, a well-meaning liberal man who told him to return for the outcome of that interview in the afternoon. In the meantime, the partner approached me to avoid some personal discomfort in turning Hosea down, and preferred me to do so. Sensing this, I asked for his reason. He said we had no space. Upon my further enquiry, he confirmed to me that this was the only impediment, and reiterated, ‘Yes, unfortunately you must turn him away as a result.’
It was true that there were no spare offices. I felt at the time that some sort of makeshift plan would have been fashioned for the child of a well-connected client in a similar position. When Hosea came back in the afternoon, I instantly got on with him. We first chatted about the work I was doing and his studies and the student unrest at his university. We turned to the matter at hand. I informed him that there was no space and that the firm was minded not to make