It has become a ritual for some persons to preface their views on apartheid by noting an abhorrence of it. They then proceed to argue for measures that will ensure its continuation. That scenario rang in my ears during the eight days I recently spent in South Africa as a legal observer for the Lawyers' Committee for Civil Rights Under Law at proceedings held in connection with the treason trial of 16 members of the United Democratic Front.
As I thought about those disclaimers I also recalled President John F. Kennedy's famous Berlin Wall exhortation: "Let them come to Berlin." To those who view apartheid as merely a word, I kept thinking, "Let them come to South Africa."
I saw the aplaws applied in the raw, as well as the effects of their long-term enforcement. It is more than a word. The picture I saw is a disgrace to a civilized society. I am amazed that it has taken the United States and other "civilized" nations wedded to the rule of law this long to call South Africa to account.
Included among the network of apartheid laws are the Population Influx Act and the Internal Security Act of 1982. The latter sanctions official conduct which deeply offends the American notion of fairness and due process by controlling movement by blacks, and it prohibits freedom of association and speech.
Under our Constitution the majority may rule, but the rights of minorities are protected. It is under the power the minority arrogates unto itself in South Africa that blacks are detained, tortured, banned and convicted in the courts for acts that our Constitution and Bill of Rights clearly protect. In the enforcement of the nternal Security Act, 16 officials of the United Democratic Front, a nonracial political umbrella organization, have been indicted for treason and terrorism. The indictment, consisting of 600 pages, accuses the defendants, of among other things,
*Attending the Albert Luthuli Memorial Service, where Nelson Mandela was praised as being "the new symbol of hope for a better South Africa" and a prayer was offered in which Mandela, Luthuli and others were referred to as "our heroes."
*Attending various meetings where songs and slogans were sung and uttered, pamphlets distributed which are characterized as "revolutionary," "inflammatory" and "bellicose."
*Issuing publications and pamphlets that are critical of the government and call for an end to apartheid.
*Engaging in other forms of conduct that "embarrassed" the state.
*Allowing themselves to be "used" knowingly or unknowingly, by organizations that have been outlawed.
For these actions the defendants are on trial for treason and terrorism, which could result in long prison terms or death.
The United Democratic Front publicly opposed a new constitution for a government that had no black participation and gave blacks no power or rights to participate. This opposition by the UDF was straightforward and open. But it brought that organization into conflict with the Internal Security Law enacted by a parliament in which the black majority population had no voice, and which was enforced by a government wedded to the notion of minority white domination.
The indictment has been attacked by the defendants' brilliant legal team. A highly regarded jurist, President Judge John Milne of the Supreme court of the Province of Natal, is presiding over this case. What must be borne in mind are the limited options available to a judge in the South African system. The contrast with the American system of justice is most striking. No judicial review of legislative enactments as unconstitutional. Parliament is supreme. No matter how unwise or offensive judges may find the laws to be, they are powerless to strike them down. Thus, they operate in a virtual straitjacket.
In the treason cases, the options open to Milne are to declare that the indictment is too vague, that the defendants have been impermissibly joined in the single conspiracy count or that the various counts of the indictment lack sufficient particulars to put the defendants on notice as to the charges against which they must defend. The judge can order the indictment dismissed or amended, and has since my visit issued his ruling; on balance it upholds the claims of the defendants. But none of his options has anything to do with the policy of the law or the merits of the charges.
Considering all of this, one is forced to again look at the laws enacted by parliament and their enforcement. The arbitrariness inherent in the laws becomes all the more offensive. For example, Section 28 of the Internal Security Act permits preventive detention if it is suspected that a person is likely to endanger "the maintenance of law and order." Section 29 authorizes detention for interrogation for unlimited periods of time.
I talked to clergymen who were taken from their homes in the middle of the night by authorities, jailed and beaten. While in jail they were forced to review their recent sermons and to explain why they conducted funeral services for various persons in the townships. At the end of their detention they were warned by police to make no further references to President Botha or to Nelson Mandela. Mothers related the events surrounding the detention of their sons and husbands, whose whereabouts they still do not know. Homes were broken into, searched by police, occupants terrified and brutalized in the process of being detained.
I was one of a five-person party arrested by the South African police and charged with violating the Emergency Order by visiting a black township in Fort Beaufort. The brandishing of weapons by a dozen or more riot police was menacing enough, but clearly the most distressing event was the search the police conducted of the automobile in which we were traveling. They carefully examined the luggage and briefcases of my South African hosts for outlawed documents and literature. Had they possessed any, my friends would have faced serious charges and long prison terms.
The march is on in those townships for uprooting of the network of repressive apartheid laws and the installation of procedures that will build a legal framework more in keeping with norms of due process and equality.
Those in this country who, for "practical" reasons, argue against application of external pressures against South Africa need to consider the reality of apartheid. There is more involved than jobs and something much more fundamental than the economic security of a relative handful of blacks. What must be understood is that the system of apartheid is more than a word. It is a cruel system of life enforced by whips, police dogs, guns, detentions, arson, torture, disappearances and death. It is a system of life that distorts human nature, as did American slavery. To those who quarrel with this conclusion, I say, let them go to South Africa.