This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
D. The Applicable Principles
In dealing with the issues raised by the terms of reference, and particularly the allegations of maltreatment, it is obviously important to have a yardstick by which the allegations can be measured. Fortunately, this task was made relatively simple. In approximately 1985, the ANC adopted an extensive Code of Conduct which set out, among other things, the standards for the treatment of detainees as well as the philosophical approach adopted by the ANC to the nature of justice and discipline. It is proposed to set out in some detail the philosophical underpinnings of this Code and the standards prescribed by the ANC itself and to use those standards as a basis for evaluating the allegations of misconduct
The Code of Conduct begins with various quotations from the Freedom Charter which has been the guiding document of the ANC for more than 30 years. The Freedom Charter asserts the basic principle that "all shall be equal before the law" and "no one shall be imprisoned, deported or restricted without a fair trial". The Freedom Charter states further that "imprisonment shall only be for serious crimes against the people, and shall aim at re-education, not vengeance". The Code then goes on to state:
"In fighting for justice in our land, we must ensure at all times that justice exists inside our own organisation - our members, the people of South Africa, and the people of the world must know and feel that for us justice is not merely an ideal but the fundamental principle that governs all our actions. Accordingly, we must at all tines act justly in our own ranks, train our people in the procedure of justice and establish the embryo of the new justice system we envisage for a liberated South Africa."
While pointing out that the ANC, "is not a State, nor is it a Government" the Code goes on to state that "the nature of our struggle calls upon us to exercise in appropriate forms, some of the functions of an embryonic state". The type of system of justice envisaged is contrasted to that which characterises apartheid South Africa:
"While racist justice is prejudiced, dishonest, cruel, elitist, pompous, ultra-technical and dedicated to serving the interests of the minority our justice must be fair, humane, honest, comradely, democratic, accessible, popular, equal for all members and dedicated to serving the interests of the people as a whole."
The Code classifies various types of offences and the range of permissible penalties. A "grave crime" includes, among other things, the crime of infiltrating the or acting on behalf of or in collaboration with "the racist regime", or "any person or group who wish to destroy the organisation or prevent it from fulfilling its mission of liberating South Africa". In "exceptionally serious cases, where no other penalty would be appropriate, maximum punishment may be imposed". By maximum punishment, is envisaged the sentence of death. Deprivation of liberty for up to 15 years may be imposed in respect of grave offences.
The Code establishes various disciplinary committees and prescribes their procedures. Of particular significance is the appointment of an "Officer of Justice" by the National Executive Committee (NEC). The duties of the Officer of Justice, acting in collaboration with the President's office and under the overall supervision of the NEC includes the following:
In the investigation of offences, torture or any forth of "cruel, inhuman or degrading treatment" of a detainee or a person on trial is forbidden.
The investigation of grave crimes is primarily the responsibility of security. It is prescribed that "all normal and reasonable methods of investigation may be used in the course of investigation". It is further prescribed that "intensive methods of interrogation shall be permissible only in extraordinary circumstances and under proper authorisation and strict supervision by the highest political authority in the area".
The manner in which the code is to be interpreted is stated to be "in the light of the principles of justice set out in the introduction, and any doubts about its meaning should be resolved in the manner which will give the beat effect to such principles".
The NEC was vested with particular responsibilities:
"The NEC in its capacity as the highest organ of the ANC in the period between Conference, and as the guardian of the interests of the membership as a whole, will be responsible for the overall supervision and control of the functioning of this Code. Although it will not ordinarily interfere with the due operation of the Code, where gaps exist or the Code is manifestly unsuited to resolving questions that have arisen, or where it is of the opinion from evidence before it that severe injustice may be committed or serious damage done to the interests of the organisation, it may issue such guidance or binding instructions as it deems fit."
In addition to the aforegoing, the ANC has regarded itself as bound by the Geneva Convention of 1949 as well as the Protocols thereto. We were furnished with a statement by Mr O.R Tambo, then President of the ANC, on the occasion of the making of a declaration of adherence to the Geneva Conventions. This took place on 28 November 1980. Describing the events as a "solemn and historic" ceremony, Mr Tambo went on to state:
"We In the African National Congress of South Africa solemnly undertake to respect the Geneva Conventions and the additional Protocol l insofar as they are applicable to the struggle waged on behalf of the African National Congress by its combatants, Umkhonto we Sizwe. In particular, we undertake to apply the provisions of the Third Convention of 1949, namely the Geneva Convention relative to the Treatment of Prisoners of War, to the regular armed forces of the South African regime captured by the cadres of Umkhonto we Sizwe. This Convention is one of the cornerstones of humanitarian international law."
Mr Tambo stated further:
"We in the African National Congress have taken the serious step of making a solemn Declaration at the headquarters of the ICRC this afternoon because we have for nearly 70 years respected humanitarian principles in our struggle....
In signing this Declaration, the African National Congress of South Africa solemnly affirms its adherence to the Geneva Conventions and to Protocol I of 1977. As we have done in the past, so shall we continue, consistently and unreservedly, to support, fight for and abide by the principles of international law. We shall do so in the consciousness that our struggle for liberation is imbued with the morality of democracy and justice, of progress and peace."
It is not necessary to set out the provisions of the Geneva Convention and the Protocols thereto. The Code of Conduct is entirely consistent with the Convention and prescribes the type of humane treatment of prisoners which are demanded by the laws of war. It is these principles by which those accused of brutality are to be judged. The limited evidence placed before the Commission revealed a shocking and persistent violation of the Code of Conduct by certain members of the security department of the ANC.