Transcript of the AFRICAN NATIONAL CONGRESS Party Political Recall in Cape Town - 12-13 May 1997.
CHAIRPERSON: Good morning! Yes, I actually mean for some kind of response "good morning". Thank you very much, yes. Goeiemore.
I want to welcome you all to this first public meeting in the recalling of the political parties. I want to welcome all of you to this first in the series of party recalls and Mr Deputy President, we want to welcome you particularly, and all of your delegation, and the people present here today.
May I on behalf of us and perhaps on behalf of very many people in our land, commend you very warmly, Sir, on the work that you have been doing with your colleagues in seeking to bring a peaceful resolution of the crisis in Zaire.
The different political parties made submissions, initial submissions and in accepting those submissions, we indicated to each of the political parties, that we would hand their submission to our research department, which would then provide a series of questions that we would direct to each of the parties as arising from their submissions. This has been done and we are going to be dealing with the first of these, as it were, return matches, where each of the parties will have responded in a second submission to the questions that have been put to them.
Clearly, whoever might have doubted that we were even-handed, will begin to doubt that particular position because each single party that has received our questions, has complained; has complained about the nature of the questions, which must indicate that for once we probably got it right. The questions are not meant to be unduly sharp or nasty. They are pointed questions, because we want to indicate to all and sundry that we are not engaging in a charade, we are not playing games, we are seeking to establish the truth about what took place in our land and elsewhere, so that we can fulfil the mandate given to us to give as complete a picture as possible of gross human rights violations that happened as a result of the conflict of the past.
We are determined to ferret out the truth, if need be. We have succeeded through other means to get information that has lain hidden from our nation for decades. So when questions are posed, it is not so that we are awkward, but so that we may ascertain the truth for purposes of healing and reconciliation.
We want to express our appreciation to you, Sir, and the party that you represent, and the fact that, one, you have such a high profile delegation accompanying you, but also the response that your party has made to the amnesty provisions under which we operate.
Premier Phosa told me or told us at a meeting that we were going to be surprised at the sorts of applications that would be coming. I do want to say that yes, we are indeed, I think surprised, given some of the problems that we have encountered in the past, it is nice to be able to say nice things.
We would like to indicate that we have in looking through your second submission, been very impressed at the answers that have been given. Also impressed, I think, by the spirit in which many of those answers have been given. At the end of this process I hope, I mean, that we will be able to be a little more detailed in expressing the good impression that we have received.
We will, after your submission, Sir, immediately you have finished your presentation, we will ask one of our staff, and I will be introducing our delegation, will be the person who is going to lead the questions.
We have noted in your submission certain requests that you have put to the Commission. We are passing all of those to our investigative unit, having taken account of them.
We hope that we will be able to finish earlier than the time that we have budgeted. The last time you were very skilful in making your presentation, that where we had thought we were going to be here up to all sorts of ungodly hours you showed a wonderful capacity - we hope you will be able to emulate your first effort and that we will be able to finish as quickly as we possibly can. We are aware that you yourself would - and your colleagues - benefit from having, as it were, extra time.
May I introduce our panel: Dumisa Ntsebeza, who is head of our investigate unit, is a Commissioner; Dr Alex Boraine, the Deputy Chairperson of the Commission; Ms Hlengiwe Mkhize, Commissioner and Chairperson of the Reparations and Rehabilitation Committee; Wynand Malan, Commissioner, Deputy Chairperson of the Human Rights Violations Committee; Rev Mgojo, Commissioner, member of the Reparations and Rehabilitation Committee. Then we will ask Hanif Vally eventually, of our staff, who is a Director of our Legal Department, he is our national legal officer.
INTERPRETER: Your microphone is not on, Archbishop.
CHAIRPERSON: I thought I was the Chair here. (Laughter). Thank you very much for letting me - I think, Mr Deputy President, if we could then hand over to you. I am asking the Deputy Chair, as you know ... (indistinct - microphone not on).
DR BORAINE: Mr Mbeki, I would be grateful if you would stand, please.
DEPUTY PRESIDENT THABO MBEKI: (Duly sworn, states).
DR BORAINE: Thank you very much. Please be seated.
DEPUTY PRESIDENT MBEKI: Thank you very much, Chairperson. I, being a slave of tradition, I would like to do what is traditional to hand over copies formally to the Chairperson, of our submission.
CHAIRPERSON: Yes. Yes. Thank you. Thank you very much. Thank you.
DEPUTY PRESIDENT MBEKI: Chairperson, thank you very much for those words of welcome. Perhaps I should also start by introducing the people who are sitting on this front desk, there are some others who are sitting behind me, who might also participate in the process of answering the questions. On the extreme left is Ronnie Kasrils, member of our National Executive Committee; Joe Modise, also a member of the National Executive Committee; Jacob Zuma who is our national Chairperson; also a member of the National Executive Committee, Mac Maharaj, a member of the National Executive Committee also; Joe Ntlhanthla (?), also a member of the National Executive Committee and Matthews Phosa, a member of the National Executive Committee.
As I was saying, Chairperson, there are some other people behind me that we might - depending on how difficult the questions are, we might abandon this front desk and move them to the front to deal with those. (Laughter).
The Chairperson said this is the return match. I suspect that we won the first match - two/nil. I think we won two/nil.
We trust, Chairperson, you will be kind enough this time to allow us to win again.
I don't know, Chairperson, if this is allowed, but some of my colleagues asked that I should ask whether they could take off their jackets, in case it gets a bit hot. (Laughter).
CHAIRPERSON: No, I think actually, I mean, that we will dispense with that Western encumbrance. (Laughter).
DR BORAINE: Chairperson, could I ask that you retain your cassock, please. (Laughter).
CHAIRPERSON: Thank you.
DEPUTY PRESIDENT MBEKI: Thank you very much, Chairperson. We would like to thank the TRC for giving us this opportunity to make these further presentations and we hope in the spirit in which you, Chairperson, have indicated, the search by the Commission for the truth, and without treating this process as a charade.
First of all I would like to indicate, Chairperson, the variety of documents that we have submitted this time round. If you will allow this, I will read part of this document which will indicate our approach to this second round of our presentation.
"In our first submission we concentrated on providing the TRC with an overview of ANC policies, strategies and tactics, within the context of the struggle for national liberation in the country. We paid particular attention to these issues which are central to the mandate of the TRC, in our belief, the nature, the causes and extent of gross violations of human rights as defined in the Act which brought the TRC into being. The questions we have received from the TRC in response to our first submission, indicate that at present your primary areas of concern include a clearer understanding of ANC policies, of the ANC's structures and lines of accountability and who was responsible for ensuring that ANC policy was adhered to by the general membership of the ANC. Several questions indicate the related concern of the TRC to establish a better understanding of what actions were taken by the leadership of the ANC, to deal with instances where there were deviations from policy.
Concern has been indicated regarding the need for better understanding of the ANC's policies, with regards to Inkatha - the IFP, particularly in the context of the violence in KwaZulu/Natal since 1984, and the post-1990 explosion of violence in Gauteng.
In addition to several questions reflecting these key areas of concern, the TRC has asked for detailed information on the activities of Umkhonto weSizwe and our former department of national intelligence and security.
More information on the activities of the former apartheid regime has been requested, particularly with regard to the national coordinating mechanisms, mechanism and other covert activities.
Our response to this major areas of concern is presented as follows:
1. A submission concentrating on questions concerning ANC policies, structures of accountability within the ANC, other relevant institutions and procedures, and actions taken by the leadership to halt deviations from policy. Our responses to questions from the TRC relating to the activities of the former apartheid regime, are also included in the documents.
2. There are two operational reports which aim to provide the TRC with a clearer understanding of the mandates and activities of Umkhonto weSizwe and the Department of Security and Intelligence and Security.
We wish to emphasise Chairperson, that this is a supplement to, and not a substitute for the main submission presented to the Commission in August, last year. As such there are many areas regarding ANC policy, our general approach to struggle, the context in which our actions took place, the policies and actions of the apartheid regime, which are not covered in this operational report. The two submissions should there be treated as complementary.
In instances where there is insufficient detail, this is either because information is not available or because the relevant issues would be covered appropriately and adequately in individual applications for amnesty."
I should add to that, Chairperson, that apart from the documents I have just handed to you, as you are aware, there are other documents which we have submitted, but have not made available for general circulation, for purposes which, Chairperson and the Commission, I am sure, you will understand. These would include reports which deal with for instance, names of cadres of Umkhonto weSizwe who died as a result of beatings; names of cadres of Umkhonto weSizwe who were executed for murder or for rape; names of agents who were executed on orders of our tribunals; names of mutineers who died in 1984, when the camp in which they mutinied was recaptured; available documents from the proceedings of the military tribunal in 1984 and so on.
These documents, as I was saying, Chairperson, we have submitted and are not included in these documents which will be public. But it was important that we should submit these and other documents to the TRC in pursuit of this objective of trying to establish as much as possible, the truth.
The Commissioners asked us, Chairperson, as you know, to make a statement on -
"Our views, motivations and perspectives on the nature of the South African conflict.
What were the values that inspired the leaders of our organisation over the years?
What inspired the sacrifices which many of your followers made?
And what drove those, who were responsible for the Commission of Human Rights?"The answers to these questions, Chairperson, we believe, are contained in our first submission. Nevertheless, we make additional submissions, dealing with these issues as contained, among others, in the section at the beginning of our main document, headed:
"Manifesto: Nature of the South African Conflict.
The conflict, Chairperson, arose out of the colonial and apartheid domination and super exploitation of the Black majority by the White minority. The oppressed majority, therefore, engaged in struggle to liberate itself from this domination and super exploitation, to give birth to a South Africa which belongs to all who live in it, while the oppressor minority fought to maintain and entrench its domination.
The objective which has inspired and guided the leaders, members and supporters of the ANC throughout the 85 years of its existence, has been the establishment of a society based on the precepts of democracy, non-racialism, non-sexism, respect for every person's human dignity and fundamental rights, equality among all citizens, the rule of law, peace and prosperity.
The gross injustice, the daily and grievous insult and humiliation represented by the system of apartheid, could not but evoke resistance by whose who were its victims. Deriving their inspiration, even to make the supreme sacrifice from the promise of the prize of freedom and liberty. In much the same way as all oppressed people throughout history have been moved to lay down their lives in the struggle to be free from oppression."Chairperson, the Commission has further asked us for -
"Further clarification of the ANC's definition of a justified target."
We did, Chairperson, deal with this matter in our previous submission. Further comments are contained in the second set of documents we have just submitted.
We believe, Chairperson, with your permission, that once more it is necessary to contextualise the armed struggle in which we engaged.
"At the beginning of 1961, after a long and anxious assessment of the South African situation, I and some colleagues came to the conclusion that as violence in this country was inevitable, it would be unrealistic and wrong for African dealers to continue preaching peace and non-violence when the Government met our peaceful demands with force. Umkhonto was formed in November 1961. Umkhonto was to perform sabotage and strict instructions were given to its members right from the start, that on no account were they to injure or kill people in planning or carrying out operations.
It is a fact that for a long time the people have been talking of violence, of the day when they would fight the White man and win back their country. We, the leaders of the ANC had nevertheless prevailed upon them to avoid violence and to pursue peaceful methods.
When some of us met in May and June 1961, it could not be denied, that our policy towards achieving a non-racial state by non-violence had achieved nothing, and that our followers were beginning to lose confidence in this policy, and were developing disturbing ideas of terrorism." These two paragraphs I have just read, Chairperson, constitute a statement that was made by Nelson Mandela, explaining the origins of the armed struggle and addressing in that context this question which the TRC, seeks to address the question of "targets".
Let me read another statement, Chairperson, in this context:
"The many trials that are going on in South Africa ..."
This is a statement made in 1964 -
"The many trials that are going on in South Africa and the thousands of Africans who are being detained, either under the 90 day no trial law, or under Transkei Proclamation 400/1960, testify to the fact that a radical change is in process in the attitude of many Africans towards the possibility of bringing about political change by ordinary political processes.
They also show the determination of the government representing the White population, to crush with every means at its disposal, both legal and military, every movement among Africans for their liberation. The dilemma confronting African leaders, as well as those who have their welfare at heart, is whether they should continue to urge their followers to stand by the methods of persuasion and discussion, in the face of increasing and relentless force with which their attempts at the amelioration of their lot, are met by the government.
When the flower of African youth, represented by such men as Mandela and Dr Neville Alexander are being sentenced to long terms of imprisonment during peace time, for fighting for their legitimate rights in what they believe to be the only ways open to them, can we say that the Christian thing to do is to advise them to acquiesce in their present situation and wait Macawber-like for something to turn up".
That statement, Chairperson, was made by the late Prof Z K Matthews, in addressing a conference which had been convened by the World Council of Churches in the then Northern Rhodesia - Zambia - in May 1964. A historic conference, which I am sure the Chairperson will remember. It had some implications also by the Dutch Reformed Church at that time.
This statement, Chairperson, I am saying, made by Prof Z K Matthews, an outstanding leader of our people, known to everybody as an adherent of the policy of non-violence, and an organiser for the pursuit of those policies of non-violence. But he says:
"Can we say that the Christian thing to do is to advise them to acquiesce in their present situation and wait Macawber-like for something to turn up."
The American Declaration of Independence of 1776, Chairperson, as you know, contains the following observation, which easily describes a particular stage in our own struggle. It says:
"In every stage of these oppressions by the British Crown, we have petitioned for redress in the most humble terms. Our repeated petitions have been answered only by repeated injury."
It goes on to say, Chairperson -
"A prince whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people."Earlier it says:
"We hold this truth to be self-evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are lively ...(indistinct) in the pursuit of happiness. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new governments.
When a long train of abuses and ...(indistinct) patience, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty to throw off such government and to provide new guards for their future security."
Clearly, Chairperson, it answers the question that Prof Z K Matthews posed whether people should wait Macawber-like for something to turn up. It says no, faced with despotism and tyranny people have a right and a duty to throw off the tyrannical government.
We would like to make the point, Chairperson, that in the end the right to rebellion against tyranny is the ultimate guarantee of liberty.
In August 1974, Chairperson, the South African Council of Churches adopted its famous resolution on conscientious objection. Here are excerpts from this Resolution. It said:
"The National Conference of the SACC acknowledges as the one and only God, Him who mightily delivered the people of Israel from bondage in Egypt, and who, in Jesus Christ still proclaims that he will set at liberty those who are oppressed. He alone is Supreme Lord and Saviour and to Him alone we owe ultimate obedience. Therefore, we must obey God rather than man in those areas where the government fails to fulfil its calling to be God-servant for good, rather than for evil and oppression.
In the light of this, the conference maintains that Christians are called to strive for justice and the true peace which can be founded only on justice. It does not accept that it is automatically the duty of those who follow Christ, the Prince of Peace, to engage in violence and war, or to prepare to engage in violence and war, whenever the state demands it. Reminds its member churches that both Catholic and Reformation theology, have regarded the taking up of arms as justifiable if at all, only in order to fight a just war.
Points out that the theological justification of a just war excludes war in defence of a basically unjust and discriminatory society."
That's the end of the excerpts from this particular Resolution, Chairperson.
The Commissioners will of course be familiar with the further evolution of this argument within the Christian church in our country and region, where the publication of the Kairos Document in 1985 and the WCC convened meeting in Lusaka in May 1987, whose Lusaka statement recognised that the nature and conduct of the apartheid regime -
"Compels the liberation movements to the use of force, along with other means to end oppression."
These processes, Chairperson, acknowledged the linkages from the identification of a government as tyrannical, to its characterisation as illegitimate and to the forfeiture of its moral right to govern and thus the acquisition by the people who are the objects of this tyranny, of the right to resistance and rebellion.
We have reiterated these arguments, Chairperson, to make the fundamental and critical point that there are just and unjust wars, and ours was a just war. We make this assertion to address a number of issues. These being:
1. That the armed struggle waged by our people to resist the colonisation of our country and to emancipate our people from apartheid oppression could never in themselves be viewed as a violation of human rights but as an imperative of last resort to restore to the people their human rights.
2. We believe that for the process of national reconciliation to succeed it must in part recognise the legitimacy of the struggle of the oppressed and welcome it as a central contributor to the creation of a just and peaceful society.
3. We must avoid the danger whereby by concentrating on those particular and exceptional acts of the liberation movement, which could be deemed as constituting gross violations of human rights, we convey the impression that the struggle for liberation was itself a gross violation of human rights.
4. We must recognise the fact that war by definition implies death and the destruction of property, and avoid the temptation to superimpose on the conduct of a military conflict, the expectation of the non-lethal consequences of a peaceful non-violent struggle.
5. In our effort to sustain the image of a South African miracle, we should not seek to impose conditionalities on the South African armed struggle which aim at making it miraculously different from guerrilla wars fought even in this century, by many peoples on all continents, without exception.
In our presentation, last year, Chairperson, we drew the attention of the Commission to various features which distinguish a guerrilla war from regular warfare, with specific reference to our own experience. We will not cover this ground again, but return to one point only.
This point is that precisely because a liberation movement takes up arms to advance the interests of the people, because its strength and success depend on popular support, and because it necessarily has to pursue the objective of the greatest possible isolation of the oppressor regime from the people as a whole, it conducts its military campaigns in ways that seek to win the allegiance and support of the people. In actual terms for us this meant not only that we were engaged in a just war, but also that we should conduct that war in a manner consistent with humanitarian principles governing the conduct of the war. This being an inherent feature of the definition of a just war.
It was in this context, Chairperson, that we acceded to the Geneva Protocols, dealing with this particular matter, of the humanitarian principles governing the conduct of war.
However, Chairperson, this does not mean that aberrations did not occur. We have not sought to hide these instances, but rather attempted within the context of our possibilities, to provide the whole truth relevant to such occurrences. We have not attempted to argue that because our struggle was just, this fact justified resort to unacceptable methods of struggle.
The documents we have submitted, Chairperson, include a list of military operations we have carried out during this period under the purview of the Commission. In itself, Chairperson, that list answers the question about justified targets in a practical way, in the sense that it tells a story of what actually happened. And what happened is that principally we directed our attacks against the apartheid forces of oppression, government installations, the apartheid state system and strategic economic objectives.
What we have said, Chairperson, to contextualise the conduct of the armed struggle should also clarify the point that the only military policy, a question which the Commission put to us, the only military policy we could and did have with regards to Inkatha, was that members of this organisation were not, by virtue of such membership, legitimate military targets. Accordingly at no stage did the leadership of the ANC take a decision or give instructions to conduct an armed struggle against the IFP.
I should say in this context, Chairperson, that as a matter that has been raised repeatedly in the past, that there was a plan by the ANC at that stage, to assassinate Dr Buthelezi. With regard to that particular issue, it is true that a unit of the ANC did at some point take a decision to carry out an operation of that kind. When the ANC headquarters found that out, it countermanded that decision and that operation was never carried out.
It is also true, Chairperson, that especially the Department of Military Intelligence made it its business to sustain the story that in fact there was an ANC decision to assassinate Dr Buthelezi, when there wasn't, and did all manner of things to make sure that Dr Buthelezi was convinced of this and so that they could take particular measures in response to what was then seen as a trap, but which as I say, Chairperson, a threat which, in fact, did not exist.
I am making the point, Chairperson, that we could not -we did not regard the IFP, its members as legitimate military targets. Therefore, at no stage were any decisions taken to attack the IFP as IFP.
"In the period after 1990, when the defence units, the SDUs were established, some of those SDUs did indeed act, they did indeed act in the context of the ongoing conflict then in KwaZulu/Natal and Gauteng Province, in defence of the people, not against the IFP, but against people who were seen as warlords and people who belonged to military groups or groups that were engaged in violence on behalf of the IFP."
We will come back to that particular question, Chairperson, of the SDUs.
We believe, therefore, Chairperson, that the documents deal in detail, and hopefully in a satisfactory manner with all the questions which the Commission posed around the various matters affecting the choice of targets.
The Commission also posed questions to us relating to excesses against cadres and captured agents. We have provided an extensive account of our activity, our activities in response to this query.
But we would like to make a few points with regard to this issue, Chairperson.
The first of this is, that our security organs made a sterling contribution to the effort to defend the democratic movement, both inside and outside the country, to enable this movement to discharge its responsibilities to secure the liberation of our people.
The second is, Chairperson, that on our own and without any prompting, as a movement we took exceptional measures, not common among organisations involved in guerrilla warfare, to institutionalise a system of justice, informed by the objective of the rehabilitation of traitors, rather than retribution.
Questions have also been put to us, Chairperson, about what has been called the ongoing conflict in the period from 1990 onwards.
The Commission says correctly that in our submission last year, we clearly stated that the violence was largely due to Third Force activity and the Commission says that while this may be true, indications are that members and cadres of the ANC were involved in the ongoing conflict, and it asked the question what level of responsibility should the ANC leadership take for these actions.
Unfortunately, Chairperson, the Commission did not quite explain what it meant when it said that it had indications that our members and cadres were involved in the ongoing conflict.
Further, the Commission commented that our first submission showed limited focus on the 1990 to 1994 conflict."
I would like to, again, with your permission, Chairperson, read some paragraphs from the documents you have, to deal with these particular questions.
We feel, Chairperson, that certain misconceptions which may have arisen, should be addressed. Firstly, our first submission did not show, we believe, limited focus on the period in question. A careful reading of our document will show that considerable care was taken to highlight the anatomy of state repression in the 1980's, in describing the concept of counter-mobilisation which underpinned the thinking of the security establishment, in identifying critically important covert projects, such as Marion and so on, and it is as precisely as possible indicating the key structures tasked with the work of this nature rather than producing endless examples of the tactical expression of these strategies.
The section on the post 1990 violence, should be read as a continuation of the earlier section on the 1980's. We concentrated on identifying key features of this period, such as the continual existence of the national security management system, renamed the national coordinating mechanism. The continued existence of covert fronts and projects carried over from the 1980's in some cases, and what we know of the activities of key units, such as the Directorate Covert Collection, rather than giving many examples of the thousands of acts of brutality which characterised this bloodiest period of South African history, in which around 12 000 civilians were killed.
We stated unambiguously, Chairperson, that we believed the violence was in essence a continuation of the violence of the 1980's and exhibited many of the features of the violence during that earlier period, as described above in the submission, although it is now projected as political intolerance or the work of a mysterious Third Force, which was supposedly against both the state and the ANC intent on derailing negotiations.
We want to say, Chairperson, that the ANC was not engaged in ongoing conflict. Nor were the majority of people on the ground embroiled in ongoing conflict. They were being attacked by covert units operating in accordance with the wishes of the apartheid regime and by organised armed vigilantes which had, with the assistance of the National Party's intelligence and security forces, established informal military bases in several hostels, from which to launch attacks on civilians in their homes or trains, or at bus and vigils. This was fully in line with the original objectives of Project Marion, and the determination of the De Klerk administration to maintain control over the pace and content of the negotiations process.
We would further like to say, Chairperson, dealing specifically with the matter of the SDUs.
The SDUs were established in communities under attack as a joint project between the ANC and the communities concerned.
It should also be noted, Chairperson, that the legitimacy of the SDU structures was recognised in terms of the National Peace Accord. As we stated in our first submission, some members of Umkhonto weSizwe's military headquarters, were asked to attend to issues relating to the SDUs, their organisation, training and the provision of weaponry. The draft document for the sake of our lives, clearly states that allowing units of this nature to operate, with party political buyers, would be highly dangerous and should be avoided at all times.
A full copy of this document, as requested by the TRC, is part of the documents that we have submitted. The units should have been controlled by the communities in which they operated, but many communities were entirely destabilised by low intensity violence, and organised structures at grassroots levels were almost non-existent.
It was made clear, Chairperson, that the overall control of SDUs was to remain with community structures and MK cadres were to participate as members of the community. MK command would itself not play a leading role.
Various clandestine units for the training and organisation of the various SDUs were set up and some cadres were asked to provide weaponry where possible. We do not have records of MK's role in SDUs, since they were not headquarter controlled structures.
It is in that context, Chairperson, that I was saying earlier, that the same SDUs, in areas, for instance like KwaZulu/Natal and the Gauteng Province, responded to such violence as may have come from people who had identified themselves as IFP.
Therefore it was not an ANC policy, as I was saying earlier, to treat the IFP as a military target, but in the instance that there was this conflict at that time, the SDUs, some of the SDUs acted in the way I have just indicated.
Further to this, Chairperson, we would like to recall that during 1990 we suspended armed action to contribute to the process of negotiations. At no stage after that suspension did we order the resumption of a general offensive on the part of our military cadres, despite the fact that many in fact had returned to the country and others had been released from jail.
Centrally, the response of the ANC to the ongoing conflict was the mobilisation of the people to engage in peaceful mass action against political violence, the suspension of negotiations to put pressure on the apartheid regime to deal with this violence, negotiations with the Pretoria regime, as well as the IFP, the Bophuthatswana and Ciskei administrations and the Afrikaner Volksfront, to end the violence, the negotiation, conclusion and operationalisation of the National Peace Accord and the mobilisation of the international community, including its premier multilateral organisations to intervene to help us end the deadly offensive against the people, our members and our cadres.
Our documents, Chairperson, also include our own comments on the important matter of the reparation and rehabilitation of victims.
In terms of my presentation now, we have no further comments to make on this matter at this stage. Save to say that we all have the responsibility never to demean those who fought for our liberation by suggesting that their reward for having sacrificed to achieve the emancipation of the people, can be measured by resort to pecuniary values or that now that they have served, their consequent destitution and suffering is not a matter of deep and abiding concern.
We have tried to the best of our ability, Chairperson, to provide the Commission and the country at large, with the truth that is an essential part of the process of building national unity and reconciliation.
Fighting as a liberation movement and not a state, we would not and did not have the means to maintain full records of everything that happened. A margin of error must therefore be allowed, which itself was impacted upon to some extent by the use of disinformation by our opponents as an important weapon in their counter-revolutionary arsenal.
When we made our first submission last year, we undertook to the Commission that in our second presentation, we would detail our operational activities, which derive from the historic, strategic and tactical perspectives, contained in that first submission. In this second presentation, therefore, Chairperson, we have sought to live up to that undertaking.
So as you will have seen Chairperson, this includes as complete a record as is possible of the operations that Umkhonto weSizwe carried out. It also includes, as we indicated earlier, a report of our department of Intelligence and Security, particularly with regard to the discharge of its functions as to detect police, enemy agents, to interrogate them and subsequently if found guilty, to guard them where they were detained.
We deal with both of these matters, we believe, Chairperson, in detail to address what the Truth Commission had sought to achieve, not only broad presentations but the detail presentations of what happened, some of which undoubtedly would be considered gross violation of human rights.
As I indicated at the beginning, Chairperson, there is further information surrounding these operations which we have given to the Truth Commission, which contains further detail, including names of people who died, and in what circumstances they died and so on.
The Amnesty Committee, Chairperson, will also hear further detailed information from our leaders and cadres, as our further contribution to the provision of the truth, which the Commission seeks.
As a movement, Chairperson, we are deeply concerned to help achieve the objectives of national unity and reconciliation for which this Commission was established. We believe that whatever may have happened and will happen during the proceedings of the Commission, the focus must remain on the achievement of the goals fundamental to the future of our country and all its people, of national unity and reconciliation. We will therefore beg your indulgence, Chairperson, to submit a further document to yourselves at a later date, reflecting our views on the matter which we believe is of critical importance, of the importance of the Commission to the promotion of national unity and reconciliation."
The panel of representatives sitting in front of you Chairperson, of the leadership of the ANC, is ready to respond honestly to such further questions as the Commission may put.
CHAIRPERSON: Thank you very much. I wonder, before I ask Hanif to ask questions on our behalf, whether people might want to have a stretch. It is warm, and if you want to, you have sort of two minutes to stand and ...
COMMISSION ADJOURNS
ON RESUMPTION:
DR BORAINE: Can I ask everybody to please take up their seats now, we would like to make a start. Thank you very much.
CHAIRPERSON: May I just introduce the people sitting on that side. It is Alison Stent and Janet Cherry, Francis Matthews and Hanif Vally. Hanif is going to be the one who leads you. Thank you very much.
DEPUTY PRESIDENT MBEKI: Excuse me, Chairperson, I notice that the Deputy Chairperson of the Commission made me take an oath earlier this morning. In the event that other people on the panel have to answer questions, what do we do?
CHAIRPERSON: They can't speak unless they have given us the guarantee that they are going to speak the truth. (Laughter).
DEPUTY PRESIDENT MBEKI: Maybe we should just allow them all to stand and give that guarantee, Chairperson.
DR BORAINE: Could I ask the colleagues of Mr Mbeki to stand, all together, any of those who are likely to answer any of the questions. Okay. There is one other coming. I am going to put the question for those of you who have any problem about using the "in the name of God", obviously you will simply make an affirmation. I don't want to impose anything on anyone, the choice is yours. So I ask you - if the Chairperson will stop laughing, I will ask you this very serious question.
OATH/AFFIRMATION ADMINISTERED TO PANEL OF ANC
DR BORAINE: Thank you, will you please be seated. Mr Mbeki, if for any reason anyone else needs to be called by you to ask a question, we will obviously take that separately, but I think we seem to be covered now.
CHAIRPERSON: Thank you very much. Hanif Vally.
MR VALLY: Thank you, Archbishop. I just want to start off by thanking the ANC team and the research team for their detailed response to the questions that we submitted to them. It gave us lots of fruitful thought and as well as raised a number of questions which we need to pose.
I want to start off with a general question, Mr Mbeki. Since the 1980's the ANC has accepted the pre-emptory force of customary international law of - since the beginning, which includes a completely non-derogable ban of torture, genocide, systematic racial or ethnic or religious discrimination, disappearances, forced labour. In the sad history of South Africa, the South Africans had believed that superior orders, be it police, military, revolutionary councils or whatever, is an acceptable defence against individual criminal culpability for these crimes.
What measures has the ANC put into place or planned to put into place so that each soldier, police officer or anyone in the position of authority, is trained and held responsible for any such violation of human rights? I am talking about customary international law.
DEPUTY PRESIDENT MBEKI: I presume you are talking about the past? Because the ANC has no intention of training any soldiers from now onwards.
MR VALLY: Well, that's regarding soldiers, but especially regarding soldiers as ANC is the government, but the principle being, what is your position regarding customary international law and its applicability, both before the elections and subsequent to the elections?
DEPUTY PRESIDENT MBEKI: Well, I think your assessment is correct. The ANC has, throughout its existence, accepted those particular precepts. We referred for instance, to the instance in which we acceded to the Geneva Conventions governing the humanitarian conduct of war. It was consistent, consistent with our adherence to those particular principles.
In the ordinary normal regular training programmes of the ANC, in all our military camps, ever since we have had Umkhonto weSizwe, these matters about the purpose, the purpose for which people take up arms, the attitude to persons, the attitude to life - I am sure, Mr Vally, you have also done some military training, even the detail of the manner in which a soldier should approach the handling of weapons, of explosives, this kind of thing, because these things cause death and should not cause death incidentally, unintentionally and so on.
So I am saying the entire training of our cadres focused in part on this particular issue, because you wanted a soldier, a combatant, who was a combatant who was at the same time a representative of the organisation, a representative of the humanitarian traditions and perspectives of the organisation. So I am quite sure that if we had the possibility - I don't know whether we have done this - to provide manuals, to provide you with manuals of our training, you would see that this element in terms of our work was contained.
In pursuit of this, we also had interaction with the United Nations Commission for Human Rights, to look at what they do in terms of their own teaching, with regard to police forces, military forces, to incorporate within those sorts of cultures, these notions about human rights and as I say the precepts that you pursue.
So as the ANC, we clearly would want to ensure that that kind of tradition continues into government now. I am sure that even in the conduct of the police service now, in particular, because of its interaction with the people, there would be less incidence of torture.
I know of certain instances when the Minister of Safety and Security has arrived at police stations without warning, precisely to check on this matter, to talk to detainees as to what was happening to them during the course of their interrogation. MR VALLY: Thank you, Mr Mbeki. What I want to do is, go directly into the issue of alleged human right violations in ANC camps, when the ANC was still in exile.
We had a look at the annexures you kindly provided us with, the Stewart Commission, the Skweyiya Commission, the Motsunyane Commission. We also had a look at the Douglas Commission. We are aware of the ANC's position regarding the Douglas Commission, but we thought it is important to look at this Commission to compare the information contained therein with regards to the allegations set out therein and compare it to the other commissions.
I want to ask you some questions, firstly, regarding certain details given to us in your second submission. In your confidential appendix there is reference to 22 members of the ANC who were executed between 1982 and 1985, on orders of a tribunal. Now relating to this, I need to ask a number of questions. Firstly, what evidence was required, what prima facie evidence was required before such a person would be accused of any offence of this nature, which will result in that person possibly being executed?
DEPUTY PRESIDENT MBEKI: I am not sure that it will be possible to answer this question in general because nobody was accused in general. There would be specific instances. You might find an instance for instance, where the intelligence, security organs discover that somebody had infiltrated poison into food or water, in a particular camp, for the purpose of killing people. When obviously such a person was identified, then the person would of course be apprehended and a process of interrogation would take place. The tribunals would then hear such evidence as would be presented to them. The person accused would have a defence lawyer, some of them are present in this room who played that role. Then the tribunal then would have to be satisfied that from the evidence presented, as it were, by the prosecution, there's a substantial case. That would be a particular thing.
Or you might have, as we have indicated in some of those lists, people who were executed for having committed murder and/or rape. Those are people who would have been caught doing that, and evidence collected from other people, including victims in the case of rape. So as we would collect that evidence as normally as is possible, and as extensively as possible, and therefore present it to the tribunal.
So I am saying that with regard to the issue, what prima facie evidence would be, I think it would vary from case to case.
Certain cases of mutiny, when people actually mutinied, but beyond mutiny, participating in that mutiny, actually kill other soldiers and commanders in the camp. The evidence is them shooting and killing other people, and the whole camp will say this is what happened and this one was shooting and so on. Again, which evidence would again be brought in front of the tribunal.
So in all instances there would be an effort to present a case to a tribunal, which was independent of the political structures, acted on its own, took its own decisions, therefore to present such evidence as would convince the tribunal that indeed that the accused person is guilty.
But I think one would have to deal with each individual case to answer the question, what prima facie evidence existed, because it would vary from individual to individual.
MR VALLY: Thank you. I want to focus on the 22 people I have referred to, who were executed for mutiny. How was this tribunal constituted, the one which condemned them to death?
DEPUTY PRESIDENT MBEKI: I am trying to see which one of my lawyer friends has got the best memory. You see there were different tribunals, so I am asking Penwill Maduna who participated in this process as to give some of this detail, which I suspect is also contained in this document. Penwill?
MR VALLY: Just to get some clarity, I am talking about before the Code of Conduct, in 1985. I am talking about - I am afraid there is no numbering on this page, but in the confidential index there is a list of people, starting from 1982 to 1985. This is what was called the "Confidential Index". Unfortunately there were no page numbers. It is headed -
"Agents executed on order of tribunals."
DEPUTY PRESIDENT MBEKI: You have, we don't.
MR VALLY: Oh, I see. About a third of the way through, I think it should be marked in there. Is it marked? It is headed:
"Agents executed on order of tribunals."
CHAIRPERSON: Please switch on the mike?
MR MAHARAJ: Is that the one from '82 to '85?
MR VALLY: That's correct.
CHAIRPERSON: May I just warn you that when we are alive on radio and so on, so when you are whispering amongst yourselves it would be prudent to switch off.
DEPUTY PRESIDENT MBEKI: Thank you. Thank you very much.
MR MAHARAJ: Chairperson, I have just looked at the list of names. To the best of my recollection I was in the Revolutionary Council at that time, and one of the first names there then is able to give me some guidance. I have just been exchanging views with Comrade Mhlanthla who was also in the Revolutionary Council.
This particular set of individuals were apprehended at different moments as a result of coming across information as to their activity. We were actually surprised by the level of activity. It was the first massive evidence of infiltration in our ranks. To the best of my recollection we certainly sent at least one member of the Revolutionary Council to Luanda. I recall one of the Revolutionary Council members as we apprehended each one in different parts of Africa, we accompanied them to Luanda, so that they could be tried there.
This was the beginning of the process of setting up tribunals. I cannot remember the precise names of those who were in charge of the operation. Certainly at least one member of the Revolutionary Council went to Luanda to participate in confronting these alleged enemy agents with the evidence and then determining what should happen to them.
The information on the list of names in 1984/1985 would begin to reach a period where we were most - were beginning to move towards a settled form of tribunals. Again, it is possible that '84, '85 had James Stewart involved in that, because the Revolutionary Council would have sent him there. Moses Mabida would have been in the early batch and John Motsabe would have been in the early batch of Revolutionary Council members who were sent to Luanda. '85, I am not able to remember those names.
Part of the problem is that we are just looking at these names straight off the cuff, and sometimes I remember them under their student names rather than the names that are presented here.
MR VALLY: My question is, how was a tribunal constituted? The reason I am asking this question is, you have advised us there was one senior member from the Revolutionary Political Council. There is a reference in the original submission on page 21. I am sorry, this is a second submission, I beg your pardon. That's correct. The left-hand column, the third paragraph from the bottom. I will read it to you:
"A military tribunal was appointed and convened on the 22nd of May 1984."
It says:
"Available documentation on the liberation of the tribunal have been submitted to the TRC."
MR MAHARAJ: I was addressing, first of all, the list of names who feature in that list as 1982. The 1984, as I said, would be the period when we began to settle towards a structure of the tribunals. 1982 was the first, the cases of the first major evidence, and in 1982, I am saying that we sent individuals from the Revolutionary Council to Luanda, to constitute together there on the spot, tribunals to attend to the matter. By 1984, having the experience of 1981/82, we began to settle on that structure.
Now on the 1984 case the available documentation has been submitted to the TRC. Again, I would need to refer to that particular documentation. The 1984 one would be the mutiny one, and that one clearly had constituted from Lusaka as to their names.
MR VALLY: Let me understand this. Prior to the mutiny there were ad hoc tribunals which consisted of one senior person from Lusaka and how many other people and where were they appointed from?
MR MAHARAJ: It would be at least one from Lusaka, it would often be more than one. It would also take into account, Mr Chairperson, the practical realities that we were facing. As a Revolutionary Council our task was to prosecute the struggle at home. Now we would look at who is available, whose schedules of work enabled them to be freed and sometimes we would have to cancel their schedule of work. There were also at times senior members present in Luanda or visiting, and we would intercept them and say stay on longer there. We would send one or two people, sometimes more, from Lusaka. I am reminded now also that the Revolutionary Council would work under the NWC and they were constituted then by the NWC. The majority would be from the NECRC structures.
MR VALLY: The NWC would be the National Working Committee. Was it ever any requirement that there would be legally trained people on this tribunal, this ad hoc - we are now talking about ad hoc tribunals, the first tribunal you had?
MR MAHARAJ: I don't think that the '82 had a legal representative to defend those who were brought to book.
I need to just go on to one other matter. The '81 discovery of the incursion into our ranks, was actually information that quite shocked us as well, as to the degree of that incursion. For example, the leader had been found out for activities that he had conducted, not only in Angola, but he had been intercepted and found out at a point where we were considering sending him home. Other members of his group, when they heard that we had picked up this particular individual, fled Lusaka. One of them, if I recall, went as far as Botswana, and we had no powers to simply arrest a person in Botswana. We had to lure him back. These people were being assembled as they began to talk, in different parts of Africa, and we were busy taking them - we then took the decision to then send them to Angola. It is in that context that we had to address this particular problem of '82, on an ad hoc basis.
I can now say for certainty, as I am recalling the events, and looking at the number of people that were arrested in different parts of Africa, that at least two members of the Revolutionary Council, in addition to anybody else from the working committee, were sent to that tribunal.
MR VALLY: What were the rights of the accused at these ad hoc tribunals?
MR MAHARAJ: On an ad hoc basis the accused were confronted with the information that we had gathered. As I say, the one who had fled, who I knew personally, certainly made his confession on the plane from Luanda, from Lusaka to Luanda, to his escort. When he realised that the game was up, he immediately began to speak freely on the plane, giving information as to his activities and his contacts.
So they were confronted with that information and they were given the opportunity to explain the events and the information that they had transmitted.
In fact, one of the leaders actually had a tape recording in his possession that he had made of discussions that had taken place in one of our transit houses in Lusaka. So that was part of the evidence, tangible material evidence, together with their confessions that they were confronted with.
MR VALLY: What I am talking about is generally the rights of the accused. We are talking about 22 executions. Some of them were potential or alleged infiltrators. Other people who were party to the mutiny. Generally, besides being told what the charges against them were, did they have a right to someone defending them and did in fact anyone defend them?
MR MAHARAJ: I think, Chairperson, we need to be, to separate the 1982 incident. The majority of the names on this list are 1982. They are more than half. 1984 has a number and 1985. Our supplementary submission today, the page that Mr Vally has referred me to, specifically says in 1984 a tribunal was constituted. 1982, what I am saying to the best of my recollection, we made no provision for legal defence of the accused. What we did, was to present them with their confessions, the material evidence, for example, including things like one of them caught with a stack of airplane tickets. All this was put to them and they were given the opportunity to explain. This was the first major incursion I must emphasise. So therefore, I don't believe that we had yet reached the point where tribunals as a mechanism, where the mechanisms of the rights of the accused were gone into in detail as we did by 1984.
MR VALLY: There is enough evidence before us to suggest that - sorry, maybe I should preface this question with the following question.
The people who were responsible for convening the tribunal and for gathering the evidence, was the Department of Intelligence and Security, would that be correct?
MR MAHARAJ: No. The people who constituted the tribunals would be the National Working Committee, which is the body in-between sessions of the National Executive, that is in overall charge. It would do so in consultation with the Revolutionary Council, which was the body charged with the conduct of the struggle at home, which was the body charged with the training of cadres, which was the body where the underground political heads and the military structures sat together. So the National Working Committee would constitute that.
MR VALLY: Who would gather the evidence of the charges?
MR MAHARAJ: The evidence would have been collected first and foremost in 1982 by the national intelligence and security department.
MR VALLY: I see it is also commonly referred to as NAT, N-A-T. Maybe I should do so, unless it creates problems for you, Mr Chair.
CHAIRPERSON: I am not quite sure what people think as they listen on radio, I think that there might be a confusion. There are NATS and Nats.
MR MAHARAJ: We took that title, that abbreviation for political reasons. MR
VALLY: The head of the department of intelligence and security was Mr Mzwai Poliso.
MR MAHARAJ: That is correct.
MR VALLY: So the evidence placed before this ad hoc tribunal, would be the evidence gathered by Mr Poliso's department.
MR MAHARAJ: Maybe, yes.
MR VALLY: It may?
MR MAHARAJ: Mainly it would - I say primarily from the intelligence and security section, but access to home information as to what was happening, would come also from the military structures and the political structures.
MR VALLY: I say this because I am looking at the Skewiya Commission of Inquiry, which is the annexure to the first report, on page 21, specifically where Mr Poliso, and I am looking at the last paragraph, the second sentence - the third sentence, I beg your pardon.
"Mr Poliso candidly admitted his personal participation in the beating of suspects in 1981. A plot to assassinate certain ANC members had been uncovered and suspects were interrogated over a period of two weeks. These suspects were beaten on the soles of their feet in Mr Poliso's presence. The soles of the feet were specially chosen, according to Mr Poliso, because other parts of the body `easily rupture'. Mr Poliso justified this treatment on the basis that he wanted information and he wanted it in his words, `at any cost'."
So could you trust the confessions obtained by Mr Poliso and his department?
MR MAHARAJ: We were not relying simply on confessions. I think that Comrade Poliso made an honest statement to the Motsunyane Commission and acknowledged that he had been party to such practices in '81. I would like to emphasise that the '81 incident was an incident of immense importance to the survival of our struggle. The agents who were uncovered, were people who had been sent by the enemy as far back as 1976, with the instructions to infiltrate our movement. One of them proved in the camp situation in the early part, to be exemplary in his conduct. It was precisely because his conduct began to - suddenly saw an aberration that we began to be suspicious.
So what we were facing as we began to uncover this plot, was what seemed to be an extremely serious threat to the survival of our organisation. It was the first evidence of such an incursion. I believe that Comrade Mzwai in Luanda was reacting on that understanding. So that is the context.
I don't believe that we relied solely on the confessions. We relied, as I say, on other material evidence.
In the case of one, I raised the question of tapings, cassettes, of the briefings that we were giving in Lusaka to cadres returning home. In the case of another I can instantly recall, the bunch of tickets, because he occupied a central position in Lusaka airport despatches of cadres throughout going home, travelling abroad, going to other forward areas. So he was privy to that sort of information, and it meant that this infiltration had reached the high level where a person could become the commander of a camp and now being specially prepared as a special unit to be sent home, it meant that people at home in large numbers would be in danger, all our forward area structures and command structures would be in danger, and our entire leadership would be in danger. This was the threat we faced and as we began to get more information, it began to look larger and larger. So we acted in that context. And the confessions played a role. I think our experience has shown us, our training told us, that confessions forced from people could not be relied on.
But you will notice that even our screening procedures by 1981 had begun to become more sophisticated, and those had given us a clue to interrogation methods that would give us reliable information. But Comrade Mzwai in his statement to the Motsunyane Commission says that what we were faced with from his point of view, was a threat that was immediate and massive. That is the context in which his conduct was explained. But I do not think that we relied ... (microphone switched off).
MR VALLY: Would you justify torture in the circumstances you have mentioned?
CHAIRPERSON: Has he been sworn in?
MOUNTAIN XHOSO: (Duly sworn, states).
CHAIRPERSON: Yes.
MR XHOSO: I wanted to add, in particular, on Comrade Mzwai Poliso issue. I think Mr Vally, if you notice, on the very same page, page 22, the "at any cost", referred to by Mzwai Poliso is referring mainly on specific cases. Here there is mention of a Keith McKenzie, that we needed have information at any cost at that particular time, because Keith McKenzie had been involved in a number of deaths inside the country, until he was later led out of the country. Whilst comrades were busy trying to interrogate him, the car he had used to cross from South Africa to Botswana exploded and it killed a number of Botswana citizens. Then the comrades had to get information from him as soon as possible, and at any cost. That's what Mzwai is referring to. It is not referring in general to all cases, but to cases whereby we know that this person is involved in certain activities, and he knows but he doesn't want to come up with further information. That is what I wanted to add.
MR VALLY: My question still remains, would you justify torture in the new circumstances?
MR MAHARAJ: Sir, as a recipient of torture, in 1964, I could never justify the use of torture.
MR VALLY: Let's go on to the next tribunal. We have had ad hoc tribunals. The next tribunal we refer to is the military tribunals. The military tribunal was established after what was referred to as the Pango Mutiny. Would that be correct?
MR MAHARAJ: That's correct.
MR VALLY: How was this tribunal constituted?
MR MAHARAJ: That seems to be in the confidential document about the tribunals. If we can just look through that. Chairperson, may I ask Mr Vally, in the confidential documentation the names don't appear.
MR VALLY: I see a document here which talks about the military tribunals, tribunals' composition. I will just read the positions:
"The Chairperson representing the HQ, representing the region, representing the region, representing the recording department, representing the commissariat."
Is that the document? The names are there.
MR MAHARAJ: To trace the document in the file that I have just been handed - could you read out the names?
MR VALLY: I do have the names, but it is your confidential document. I don't know.
MR MAHARAJ: Oh, I see. Could somebody just give me sight of that document so that I could quickly find it on this file.
MR VALLY: Well, let me pose my question there, were there any legal people on this tribunal? Once you see which document it is.
MR MAHARAJ: No, Sir, there were no persons with legal training on that tribunal of '84.
MR VALLY: Were they all military personnel?
MR MAHARAJ: Revolutionary Council, they would have all have undergone military training, but they were deployed in different tasks. For example, the very first name was at that time chief representative in one of the neighbouring countries.
MR VALLY: How was (microphone switched off ...) weighed up in this tribunal? What was the burden of proof required?
MR MAHARAJ: In 1984, Mr Chairperson, was the mutiny. This was the tribunal established around the mutiny. And therefore the evidence would have related to witnesses of what had happened during the mutiny. I think that our main submission, if I may just look at page 22, then talks of the number of witnesses that were called before the tribunal. There are 66 people who testified before the tribunal.
MR VALLY: Sorry, which page are you looking at?
MR MAHARAJ: Page 21 of the further main submission that we have made today. Immediately after the paragraph where it says -
"The military tribunal was appointed."
The next paragraph says:
"66 people testified, of these the tribunal recommended that 16 mutineers should receive the death penalty, while others were either recommended for demobilisation or acquitted and referred to the camp disciplinary committee to face lesser charges."
MR VALLY: Was the evidence required on a balance of probability beyond reasonable doubt or some other test?
MR MAHARAJ: Sir, I wasn't present at the tribunal, but as a member of the Revolutionary Council we would have required beyond reasonable doubt.
MR VALLY: Were any of these people allowed legal defence?
MR MAHARAJ: I don't recall at that stage that we had reached the point where we began to provide legal defence. I think that legal defence then became, we began to provide for that shortly thereafter.
MR VALLY: How was the severity of punishment decided? Who decided and on what basis was the decision made who lived and who didn't?
MR MAHARAJ: That, the question of the punishment, the sentence, was at the discretion of the tribunal members, based on the nature of the offence and their level of involvement in the mutiny.
MR VALLY: I ask this question because if you look at your first submission on page 71, where you talk about the Pango Mutiny, and you actually say - alright, on the left-hand column, the second paragraph from the bottom:
"None of the second group of eight was executed, despite the fact that one of the mutineers had hunted down wounded comrades the morning after the mutiny began and finished them off."
So how did you decide who was executed and who wasn't? He was in fact released.
MR MAHARAJ: First of all, we had at that stage the code of conduct regulating the conduct of members of our organisation. Secondly, the facts of the mutiny. But as you know a tribunal acts in its own judgment on the basis of the evidence presented to it. And we have drawn attention in this submission to the one individual who was not executed, even though the information had indicated that he had participated at that level.
MR VALLY: What I am driving at, is that there were no fixed rules of procedure. It seemed an ad hoc arrangement. Some people would be executed and some people wouldn't be, who seemed to have committed the same offence, and I understood that at this stage, there was no code of conduct. The code of conduct came in in 1985, after the Kabwe Conference. MR XHOSO: Well, I wanted to add on this. It is true that it was no code of conduct then, but it was already starting to circulate in preparation for the Kabwe Conference. But there were rules and regulations of the army and rules and regulations of various camps. In this particular instance of this individual, actually more people were sentenced to execution by that tribunal. Then the first seven were executed, but the leadership of the ANC had sent a message to say that we should hold, there should be no more executions. That is how then they escaped, they were not executed, but there were actually sentenced also for execution.
MR MAHARAJ: I think that there is a reasoning that went on now that Comrade Mountain has reminded me of the two batches and the intervention by Lusaka. When we looked at the incident in Lusaka we realised that agents being sent by the regime were Black and they were sent in ways where the regime was not caring for their lives. It enhanced the capacity we would have to rehabilitate such persons.
Also, we were concerned in Lusaka that the first trial, the first batch, had been executed and we felt that those - that that process of tribulation decision in regard to executions should be governed also by a review process. That we felt that this was not an incident of just one person being executed and then us having some space to decide on a proper mechanism. Here were a group of people executed, another group were coming up for trial, and we said we cannot go this way, we need a review process.
MR ZUMA: If I can say something as well on this one.
CHAIRPERSON: Can I just say again for the sake of the radio audience, Jacob Zuma.
MR ZUMA: Thank you very much. The point I wanted to make here or probably an observation, is that there are general understood rules in military institutions. I think the question of mutiny is usually dealt by the army itself, on the basis of what the soldiers have done. Here, the reason why this was a military tribunal, because it was being dealt with at that level, and decisions were taken at that level by the military tribunal, on the basis of the mutiny that has caused the kind of damage as reflected in the evidence. Now there might be in the world of human rights, probably a possibility of the legal people coming to deal with such situations, but situations in the army are not the same, because it might depend where the mutiny is committed. Also, the armies themselves are not of the same, you are looking here - the Deputy President has dealt with the guerrilla war and the situations where these armies are situated. So it was in that context that the military tribunal was set up, and the report was given to the leadership, when action had been taken on the basis of the convictions that have been made.
The important point is that the leadership then intervened and said hold on, even if there are those rules, given the adherence of the ANC to the principles of human rights, it may be necessary that we do the review.
I may add that other national liberation movements in fact do not enter into such elaborate arrangements. Once an enemy agent is discovered, he is dealt with immediately. We went into elaborate arrangements to try to deal with the human rights and give the right to such people. Normally in any national liberation movement that you could study in the world, they don't go through such procedures. Once an enemy agent is discovered undermining the struggle, is dealt with. We went the other way. That's why even a person who did such brutal murdering, cold-blooded murder, even finish off people that he had not seen during the night, but his life had to be spared. I just thought I should make that point, because it is an important point.
CHAIRPERSON: Thank you.
MR MAHARAJ: Chairperson, may I add something on the question of the code of conduct. The document that you are referring to as a code of conduct was adopted after Kabwe. But before that, we did have a set of rules, not called a code of conduct, which was later refined, and after Kabwe adopted as a code of conduct,
The second point I would like to make about the two groups, the one executed and the one group not executed. Again, it is important to realise that the problems at Pango didn't interrupt just in this mutiny. There had been earlier dissatisfaction where comrades in the camp had mutinied. In particular, there was, I think around December 1983, there was a mutiny in Pango, and the Revolutionary Council had arrived in Luanda, just about the time of the mutiny. The Angolan government were the first to alert us, our President, that such an event had taken place. President Tambo then changed the nature of the meeting of the Revolutionary Council and we met all night. We took a decision by about three o'clock in the morning, after having debated all the options and based on the reports we were receiving, including the fact that the camp - the regional commander had travelled by road over a distance of more than 450 kilometres, through hostile territory to come and give us a first-hand report. We took a decision to send three comrades from that meeting, if I remember, three comrades from that meeting, to travel overland, leaving that morning at five o'clock, with the instructions to go and resolve that mutiny without the use of force. That was the expedition that was led by Comrade Chris Hani and Comrade Mhlanthla was in it. Indeed, they went there.
The mutineers were fully armed and the delegation sent by us put the - went in unarmed and when they assembled all the comrades, asked them all to put out their arms outside the meeting place, otherwise the meeting would not start. So the matter was resolved in that way in a political way.
But the matter was not left at that point. President Tambo then insisted that the rest of us, including himself, should travel by a special plane that he arranged with the Angolan government, and all of us were required to go to the camp to address the comrades in the camp, politically. We reached the first camp by plane. Drove a certain distance. And at that meeting President Tambo asked each member of the Revolutionary Council without preparation, to address the camps. He spoke last. I see a number of my colleagues are here who were at that meeting.
This I have sketched because having thought we had begun to address the problem politically, when the second mutiny took place, and it resulted in the death of almost the command structure in the camp, that is when the first sitting - group were executed.
The second group were then intercepted, as I have explained, and said we do not think that we should just be proceeding this way, we need to re-examine the tactics being used by the enemy.
MR NHLANDLA: Maybe just to complete what my comrade Mac has said. We had gone to Angola for a very high meeting of the Revolutionary Council, and found that a mutiny had started in the east. At about three o'clock a decision was taken that Chris Hani, myself and Lambert Moloi, should proceed. We were asked if we needed any escort in terms of, I mean, of army and so forth. We said no, we are going to see our people.
We had a meeting that lasted almost the whole day, with the comrades, indicated to them that mutiny in terms of army, of military code of conduct is a very serious offence, but that we understood the problems facing all of us, and particularly in Angola, and therefore we were going to make a recommendation to the leadership in Luanda. We thought then that they were still in Luanda, they had not flown as Mac was saying. And we agreed with all those comrades that we are going to make a recommendation for the leadership not to treat the incident as a mutiny, but that there are problems, and then that the movement should set up a - I mean, some commission and so forth.
I think that was how the Stewart Commission was gone. And that was agreement at that meeting with the comrades that had mutinied. I must say that it was a - it was quite a regiment of comrades who were protecting a particular wing in the east. They were armed to the teeth because they had to protect themselves. It is the time when the Angolan struggle in the south was intensifying and more and more of the Angolan troops were going to the south and MK had to protect itself.
But what I want to emphasise is that we got to the leadership, afterwards reported at the meeting that we had and the leadership agreed that the matter will not be considered as mutiny. And that a commission was going to be set up and we thought that was the end of the matter.
So I am trying to say ANC did not arbitrarily take any disturbances as mutiny and resorted arbitrarily to, I mean, to execution. It was unfortunately after, days after - when we had even returned to Lusaka, myself and Chris, that we got a message that there has now been a flare-up and unfortunately there was now - they were marching towards Luanda, and the government of Angola of course had to say it cannot tolerate that kind of situation.
But so all that happened, leading to execution, should be understood. On the basis of the second, not the first. The first, the leadership, I mean, of the ANC, which was gathered in Angola, agreed and reported back to the leadership in Lusaka and the leadership in Lusaka agreed that this matter should not be treated as mutiny but as some dissatisfaction and so forth. A commission was to be set up, representatives coming from all over. Some of the people who participated in the commission came from London and other places, to make it as neutral as possible.
DR BORAINE: Could I just intercede at this stage and say Mr Nhlandla, thank you very much. Unfortunately I was not able to ask you to make your name known, again for the radio listeners. I would be grateful if anyone who participates, if they can start, even if they have spoken before, by giving their name, just so that everybody knows who is who. Thank you very much.
MR VALLY: One of our mandates in terms of our Act is to determine the whereabouts of people who have disappeared, and I just need clarity on the issue of whether the families....
CHAIRPERSON: Sorry. Could we just hold there. I mean, you have sort of dealt with your first section as it were, the questions on human rights violations in ANC camps. I just want to find out from my colleagues here, whether there are any who want to ask supplementary questions before you go on to the next one. Dr Mgojo?
DR MGOJO: Mr Chairperson, I think the question which I was going to ask is the one which Hanif Vally was going to ask. That in terms of our Act, the families are saying that some of their children, sons and daughters, got lost somewhere in exile.
CHAIRPERSON: Dr Mgojo, I wondered whether you would confine it to the whole question of human rights violations.
DR MGOJO: Thank you.
CHAIRPERSON: In the camps and then disappearances will come as next.
DR MGOJO: Thank you.
CHAIRPERSON: You have - Dr Boraine?
DR BORAINE: Thank you, Chairperson. I refer to the report that was submitted earlier today, and on page 20 on the left-hand column, paragraph 2 from the top or it may even be paragraph 3, if you take the first words. I want to read the sentence which starts, that:
"These exposed allegations that a serious mutiny was put down by troops trained in the GDR and the cadres were subsequently ill-treated by Ronnie Kasrils, as deliberate disinformation, typical of the propaganda in the report of the Douglas Commission, a STRAPCOM exercise, covertly funded with taxpayers' money."
This is a very serious allegation, and I am wondering if you can substantiate it in any way in terms of the Douglas Commission. Thank you.
CHAIRPERSON: Deputy President Mbeki?
DEPUTY PRESIDENT MBEKI: Thank you, Chairperson.
According to our information, Dr Boraine, the Douglas Commission was established principally through a man called Russel Christa, who was an agent of military intelligence. I don't know if he still is, and is also currently a member of the National Party in the Gauteng Province.
Most of the report of the Douglas Commission derive from information or misinformation, as the case may be, given by one Mowesi Twala, at the Braamfontein offices of the Freedom Foundation, which was itself a front of military intelligence and was headed by Russel Christa. Those are the origins of the Commission. That's how it gathered its information. That is why this statement here, because it clearly from all the information we have, was set up as part of the activities of military intelligence.
DR BORAINE: Thank you.
CHAIRPERSON: Ms Mkhize?
MS MKHIZE: Just one brief question. Going through this document and having heard briefly what the Deputy President said about gender specific human rights violations, I would from our human rights violations hearings, we have heard quite a number of people appearing before us, saying in the ANC camps outside the country somehow women's rights were neglected, and in quite a number of instances, they have referred to gender specific human rights violations, which I think as this Commission, if we fail to capture, would not have done justice in the quest for truth, especially when thinking about what should be done in future in making sure that these experiences are not part of our history again.
DEPUTY PRESIDENT MBEKI: Thank you very much, Bishop. We will ask Joe Modise to deal with this question.
MR MODISE: Well, I think the allegations in many instances are true. The African National Congress, because we believe in gender equality, took steps to correct this. It was a very serious problem, which resulted in the top leadership of MK visiting the camps and instructing the camp commanders, camp commissioners to put an end to this practice.
Unfortunately this kind of problem is a very difficult one. It is the kind of problem that manifests itself in places such as camps, very far from home, isolated, in hostile areas, and the difficulty of young men going out into the towns to go and look for young ladies, was rather limited, because there were ambushes also on the way. Unita was very active in those areas. Now the confinement of men and women sometimes result in this problem.
There was also information to the effect that some of the camp commanders took advantage of their positions and started asking or pressurising some of the young ladies to do them favours. I think it is understood what type of favours I am talking about. Some commanders had been removed for this. So it was a problem that was addressed by the movement and its armed personnel. I thank you.
MR MAHARAJ: Chairperson, Gertrude Shope would like to make a comment on this question, with your permission, but she probably needs to be sworn in also.
MRS SHOPE: (Duly sworn, states).
DR BORAINE: Thank you very much. Please be seated.
MRS SHOPE: Yes, Chairperson, I thought I should explain that the question of women being looked down upon or being mishandled, I think it is a global question all over. It did not only mean that it was the women specifically who were in the camps, who suffered these problems. Women as a whole are supposed to be the fair sex as it is always regarded. It is the duty of the women to make sure that they fight for their own rights and to be recognised as equal power within their community.
So in this particular case the Women's League, the Women's Executive Committee took turns in visiting our camps in Angola and wherever they were, to go and see our women, to go and solve some of their problems, to go and discuss with the command within the camps, how best we can work out these problems. I think we did that and to a very great extent, we did succeed.
But I want to say that the climax of this problem was solved on the 2nd of May when the women's section pressed hard to the executives of the ANC to put their position vis-a-vis the women in the document. As a result we have a document of the 2nd of May whereby the ANC made its position very, very clearly, how it respects its women, how it expects everybody else to take women as equal partners in the country. That only did not mean just by treating them, it also meant that whenever there were delegations, women should be considered. Whenever there was postings, even abroad, outside the country, women had to be considered, within the executive women had to be considered. Because we believe that the women of our country played a very important role in the struggle for liberation, and I think it is also in addition to their contribution, that today we are enjoying the dispensation in which we are enjoying today. Thank you.
DEPUTY PRESIDENT MBEKI: Mr Chairman, Ronnie Kasrils would also like to comment on the same question.
MR KASRILS: Yes, Chairperson, I would like to first of all say that in the ranks of Umkhonto weSizwe, right from its inception in 1961, we had women combatants, women had - we had great respect for women in Umkhonto weSizwe. This was the case right throughout. I am stressing this because obviously Ms Mkhize is focusing on an area which did exist, but we are focusing here on would like to bring this to your attention that any oppression that might have taken place or abuse of women, was not part and parcel of the everyday occurrence. This was something that would have been hidden.
Women, as I have said, had a position of very high respect in our camps. When it became noted, it was brought to our attention that certain abuses were taking place behind the scenes, as Comrade Joe Modise has pointed out, action was taken. It culminated with Comrade Gertrude Shope and others being brought in to assist in dealing with something that we would not tolerate.
The councillor has also asked, as I understand the question, as to what we have done to ensure that the right of women is recognised, and this should be in the military, I presume.
We are talking here about the ANC and the ANC has taken great steps within its ranks, but the Ministry of Defence, this government, ANC-led government, have taken very definite steps in this regard. We have had a gender conference within the defence force, to focus on these issues.
We have an Equal Opportunity Affirmative Action Directorate to look at the issue, not just of gender question, but of the whole total problem. We have an educational programme within the defence force which deals with civic education, including the need for gender sensitivity. All of that has been brought about through our experience within Umkhonto weSizwe over the years. Thank you.
CHAIRPERSON: Thank you very much. MR MALAN: Thank you Chairperson. If I may take you back to the discussion we had a little earlier, page 22, the statement accredited by Mzwai Poliso about discovering the information "at any cost". There are three bullets or points there, and this is really a question for comment, but I want to follow it up with a second question. That is, is this contextualisation of torture, not virtually universal in all cases of torture? Especially the second and the third bullet, that people say but we need to obtain the information quickly, or remember these people who claim that they have been tortured or might have been tortured, have been uncritically portrayed as innocent victims, although they have done atrocious things. I am asking this, because we find this also in our human rights violations hearings, which is the build-up to my real question, that people come before us as victims of torture, but on occasion, and the structure is not such that we can really get to the various roles or dual roles of people who were both victims and perpetrators, that we do find on follow-up questions that people admit, for instance, to having participated or actively led a necklacing, but come before us as a victim of torture.
Now the question really, I think, I will follow through again when we get to reparations and concept of victims, but I think it is relevant at this stage, is to whether people referred to here, that were subjected to the kind of treatment on which it is commented here, would the ANC see them as victims? Because in terms of the Act, I would read them indeed to be victims. But at the same time, they might be seen as perpetrators of human rights violations.
If there is - if the delegation is not in a position to comment now, I would urge that where they talk, promise the follow-up presentation, that they look at the reconciliation also with regard to this dual role which I think we find much more than we care to admit at this stage. But if there is a comment at this stage I would be happy to hear that.
CHAIRPERSON: Matthews Phosa?
MR PHOSA: Well, I think if you took the particular case you are referring to of McKenzie and many others, and you check from where he came from, and you have heard that the car he was using had a bomb in it, which exploded in Botswana, which killed people, now if you trace his steps back you find that he has got a trail of victims who are entitled to appear here and who will submit, you need to take their cases as those of victims, before you even begin to define him, and people like himself, who ended up in this type of situation.
Now again, in our hands he becomes a victim, to the extent of which there have been violations. He becomes a victim. But he has got dual capacities. He is a perpetrator of the worst kind and a victim too.
CHAIRPERSON: Mac Maharaj?
MR MAHARAJ: May I just make an observation. In the documents we have supplied, there is a case study number 5. I think it would be important to look at that case study to try, in the light of the questions raised by Mr Malan, because you will see there that before the person came into our hands, he had carried out harassment, petrol-bombing and killing of a large number of people inside South Africa. Now how should we see him? A victim recruited by the security branch under duress or a person who is the perpetrator of gross violations, because he killed for no reason, except that his superiors said kill and some I don't believe even his superiors told him to kill them, he just killed them?
But we in general, the framework in which we examine the problem, is that we said some of the people that have come as agents have themselves been brutally treated by the apartheid authorities. We need to take that into account. Secondly, we said we need to take into account that the overwhelming number of informers being sent into our ranks are sent so ill-prepared, and that meant that the enemy did not care for Black lives that it was sending to us. Some of them were even told I think you will be found out. They were sent on the most reckless missions. Now to anybody sending them it would appear obvious that they would be apprehended by us and discovered to be informers.
We are to say it is important for us not to lose sight of the politics of our struggle. That is why we did rehabilitate so many people who were confessed agents. So the question you have raised of perpetrator or victim maybe leads to a problem, but we do accept that we need to help perpetrators to be rehabilitated, to correct themselves. But we believe that the victims need reparations, and maybe the Commission has to make this judgment in particular instances. But I think in general it would be a bit problematic in the context of our struggle to find a clear guideline. There are clear cases and there are grey cases where the issues are a bit more dubious.
CHAIRPERSON: Thank you. Hlengiwe.
MS MKHIZE: Just to go back to the question on gender. I will just make a request that we really appreciate your co-operation in terms of giving us the specifics. Like, we know and we accept that women were abused, not only outside but also here, but whilst it is important to have specifics like specific methods of torture used, gender specific methods of torture used, there are many other methods which were used and were unique to women, but that is not necessarily for today.
My last question really is to ask a general question, whether you would sincerely say you have opened the camps to the people of South Africa. From our human rights violations hearings the question of what happened outside camps, of what happened outside, that is in the ANC camps in particular, is like a dark cloud which is just hanging over us. We find it difficult to give the victims the specifics and they have appeared before us, and we accept what we have been given. My question is whether there are any other, from your documents, policies, practices or whatever, which the people of this country need to hear about the camps?
DEPUTY PRESIDENT MBEKI: Let me say to that, Chairperson, that this is a - the Commission has got certain specific tasks. One of them is the discovery and exposure of gross violations of human rights. When we introduced this document, Chairperson, we tried to draw attention to a danger that lurks somewhere underneath the surface with regard to that, in that because the Commission has to deal with those matters, that is its mandate and must deal with that, and therefore doesn't have to deal with the issues of non-violation of human rights. You could then get an impression such that all that happened was violation of human rights.
You see Joe Modise here and Gertrude Shope, Ronnie Kasrils did say yes, indeed, there were instances of the kind of abuse of women that you referred to, but the fact that we talk only of that, does not mean this is the only thing that happened to women. In the majority of cases, and I am sure you can talk to all the women, cadres of Umkhonto weSizwe, that they would say that they have never had any such experience. This does not mean that - let us take me for instance, hypothetically, it doesn't mean necessarily that I couldn't have said to Geraldine oh, you look beautiful today, can we go dancing together. But I am saying the danger of the work that - which I think needs to be guarded against consciously, of the work that we were doing, is that the Commission is attending to, is that because you are looking specifically for this violations, which is what you must do, then an impression can be given that all that happened was violation of human rights, and it is not true.
With regard to, it is also reflected in the question that the Commissioner raises about opening up the camps. There were thousands and thousands of men and women who went through these camps, over a number of decades. There are people who joined Umkhonto weSizwe from the beginning. We went through a particular period in our history at the point of extreme repression in the sixties, in the sixties in particular when the machineries of the ANC within the country were destroyed to all intents and purposes. Many thousands of people arrested, imprisoned and all of this. In reality what remained of the ANC as an organised formation was outside.
We would say in 1976 when larger numbers of people began coming into the ANC, that if the generation that joined Umkhonto weSizwe at its beginning and stayed with the organisation despite all the difficulties, there would not have been an ANC for those young people in 1976 to join. I am talking about people who were with Umkhonto weSizwe from 1961 and have just been demobilised now. They would not have stayed in an army which was characterised consistently by human rights abuses.
Nor would these thousands of young people have stayed, come and joined this army, stayed in it, been inspired to come and fight, the Solomon Mhlangu's and the others. They wouldn't have taken this position if this army was characterised by gross violation of human rights.
So there isn't anything to hide about these camps. There ought not to be the notion of a dark cloud as the Commissioner was saying, because you have a sense that there was something that was hidden, that we should be ashamed of, that needs to come out during these hearings. The overwhelming majority of these South Africans who joined Umkhonto weSizwe, whether they went out of the country or stayed in the country, were not traitors. They were not traitors. They didn't sell out, they didn't become subject to investigations. They didn't become subject to abuses either, of being beaten and tortured. I am saying the overwhelming majority of these people.
So I would plead that we should not, in the pursuit of this particular set of issues which must be pursued, gross violations, then begin to develop an impression that what we are about was gross violation of human rights.
My colleagues here, Mr Vally, were whispering to me that they would like us to go beyond the earlier period of those military tribunals, 1982 and so on, that you asked questions about, because again what happens, is that when we leave the matter there, it is as though that is all that happened with regard to the administration of justice in the ANC, whereas in fact, because we learnt many things, we are clearly caught unawares by the extent of the infiltration of the movement. We hadn't understood it. If I had time, Bishop, I would explain some of what we have got to understand.
Many of us who had gone into exile for longer periods, only understood very late the extent to which values of money and material goods had taken hold of the minds of our youth. It is because we hadn't had that experience and then discovered that in fact you could get this flat(?) simply on the promise we will buy you a Mercedes-Benz when you come back. It took us by surprise, that you could have so many young people corrupted as extensively. We reacted in a particular way, inadequately at first, because this thing suddenly hits us as a flood, and then the things improve.
But I was saying, Mr Vally, that my colleagues here were saying too, it is necessary that you ask the questions that you ask, it is necessary that we provide honest answers, but it is also necessary to say that there was continuous improvement in our treatment of those people, including declarations of our own amnesty. So I was just responding to Commission Mkhize. I think we need to maintain a certain balance.
CHAIRPERSON: Thank you very much. I think, I mean, that my colleagues at the moment are satisfied and perhaps they will try and bear in mind your plea. Hanif?
MR VALLY: Thank you, Mr Mbeki. I note what you say. Unfortunately the Act was given to us. Our mandate is to find out the gross violation of human rights, not the upholding thereof.
I just have two more questions on this issue. The first question which Dr Mgojo also tried to ask, was have the families of the people who were executed been notified? And do we know where the people who were executed, were buried?
CHAIRPERSON: Matthews Phosa?
MR PHOSA: Thank you, Mr Chairperson. I thought the question was about whereabouts, now it is changed to whether or not the families have been notified. I would like to deal with both, because I think they are related.
If you go back you realise that there was a war going on in Angola, in particular, and go back, it was not easy for any South African, inside the country, to go out and meet the ANC and hope to come back and have a happy return. Those are facts.
Given all those situations, it was not easy - at a certain time, if they were expelled before 1985, for many families to be informed promptly or even to attend funerals. But later it became much easier as we had delegations even going to Lusaka of many people, for many families to attend funerals outside and to be informed promptly of the death of their children.
Since we came back, as we are re-establishing the organisation inside the country, we formed, what we call the Bereaved Family Desk, headed by Mrs Msumang, who is a veteran in the organisation, and a number of others, who have been compiling information about all these sort of things we have been talking about, and also taking steps to visit families or cause visits to take place, and we have got a lot of information about their work and where there have been executions, a number of families have been informed. There are those who have not been informed. There are a number of objective and subjective factors why some families were informed and others were not informed. If you take the KwaZulu situation. A lot of families have been displaced and it is very difficult to trace a lot of people, to give that particular example. Yes, we have been informing families and yes, we have informed families with regard to some of the people who were executed. Thank you.
MR MAHARAJ: May I just add there, that even in exile, we had also set up a similar committee, in the secretary-general's office to help trace families inside South Africa, whose relatives may have died abroad. So that effort was being made even from exile conditions. Although conditions have improved since 1990 for that work to be more effective. But we had managed to contact particular relatives. In certain instances, we actually arranged for the relatives to come over to Lusaka, either to visit their relative or to come to the funeral or to be informed of the circumstances of the death of their loved one. So those steps were being taken already in the mid-eighties from exile, and if not a little earlier.
MR VALLY: Sorry, there is a second part ...
CHAIRPERSON: Perhaps since he had wondered whether he might - Dr Mgojo.
DR MGOJO: Well, thank you. I am pleased about that information. But I wish whatever strategy is being used is very pastoral to the families. There is a general complaint which we receive in these hearings, that some of your offices which are dealing with this, they are not very sensitive to the families. Then it causes much hurt to the families, already hurt by the missing of their children, where they don't know where they are. I just want to caution that though I hear, let us not make more victims of the people who are already victims. Thank you.
MR ZUMA: I think we will take that seriously and we will have to follow up with respective offices. But I must mention that in certain instances, if you take the case of Barney Mulukwane, a very respected MK commander, we are struggling to identify the correct grave. We have gone to the police and say please show us the correct graves. They don't want to show us, they pretend they don't know. It happens in many operational areas as far as we are concerned, Komatipoort, Botswana borders. The police have not been co-operative in showing us the correct graves, even with the Barney Mulukwane, we wanted to take the family there. We could not with certainty say this is the grave. I think the Commission should also pay attention to that. CHAIRPERSON: Thank you very much. Dumisa Ntsebeza?
MR NTSEBEZA: Thank you, Chair. It is just a follow-up and a request that you should possibly look into. I hear all the reasons that the tribunal said but some of the Commissions that have dealt with these violations, have - certainly the Motsunyane Commission, have indicated that at least six detained ANC members were summarily executed or beaten to death. Now this seems to have spanned over a period of time, from 1981 in one case to 1989 in the other case. The names have been given and the Motsunyane Commission gives this from page 151 to page 158, I think, of the Commission. It is quite disturbing to find that even in spite of the fact that there was a Code of Conduct, certainly from 1985, you have the 1989 incident where a person apparently was beaten to death during the course of the night. It doesn't appear that both in your august submission and the second reports, both public and confidential appendices, you have dealt with the names mentioned by Motsunyane on pages 151 to 156 of his report. The names are Ntombe Kombukane, Jimmy Parle, Philip Mangena, otherwise Drake Shilwane, David Dumela, Nthlapo Kenneth, Solisi Beko and Thabo Twala. I am not expecting you to sort of give us an answer right now, but it is something that would complete our picture if you could - if you give attention thereto.
MR MAHARAJ: We will certainly look into those lists and respond to that properly.
CHAIRPERSON: Thank you very much. Well, I think we should probably still go on. We hope to take lunch at one, one to two o'clock, so perhaps you might continue.
MR VALLY: Thank you, Archbishop.
My final question is directly related to the amnesty applications we have been receiving. We have got a series of amnesty applications on Saturday, the 10th, from the ANC and a number of them referred to allegations of torture and human rights violations in other camps besides Angola. We have got copies of these applications here. It would not be correct to mention their names at this stage, because the hearings haven't taken place, and was any investigation done, like the Stewart Commission, regarding camps in Zambia, Tanzania, Uganda?
MR MAHARAJ: Chairperson, first of all, we didn't have, on a continuous basis, camps in Zambia. Secondly, other countries, Tanzania, we had the Solomon Mahlangu School and I think our submission explains how one of the farms came to be perceived by some people, alleged by the Douglas Commission, to be a detention centre when it was not. Then there is Uganda.
Now there is no commission but it underlines the point made by the Deputy President, that in general no major problem had arisen. However, we would like to co-operate fully with the TRC and that if we are provided with any of those questions, we would straightaway look into the matter and respond. But without the information before us it is difficult to respond thereto. We don't know whether the allegation is real or not real. So we would like to co-operate with you in that spirit. MR VALLY: We will let you have a copy of the amnesty applications that were given to us.
Sorry, I thought it was my final question, but the one question I want ...(intervention)
CHAIRPERSON: Alfred Nzo. You did take the oath?
MR NZO: Yes, I was amongst the first.
CHAIRPERSON: Thank you.
MR NZO: Well, what I wanted to add is that you know, during the course of our stay and work in exile, there were instances when some members of the African National Congress got involved somewhat in transgressing laws of the countries in which we were. Now in those instances the African National Congress had a policy that the law of the country in which such transgression takes place, must take its full course. We would not protect them in that regard.
Of course, in the course of detention in some of these countries, we received ourselves you know, complaints of harsh treatment by the local police officials, of those that had been detained, having transgressed against the laws of the country in which we were. Well, of course, we don't know whether in the course of the rule applying, they would also want to mention those as though the African National Congress there was responsible for them. I just merely wanted to warn against that.
CHAIRPERSON: Thank you very much.
MR VALLY: I am sorry, Mr Chair, I thought I was finished. There was a very important question I haven't asked, which is where - is the African National Congress in a position to show the TRC or the families who have been executed as to where they are buried?
DEPUTY PRESIDENT MBEKI: The answer is yes.
MR VALLY: Mr Chair, I am finished with this section now.
CHAIRPERSON: Which section are you talking about?
MR VALLY: Section 1.
CHAIRPERSON: Disappearances in exile?
MR VALLY: No.
CHAIRPERSON: Human rights.
MR VALLY: I am not finished with the camps. I haven't finished with the camps when you assumed I had.
CHAIRPERSON: Oh, I see, I see. You should make it clear for me to understand that you have. Alright. I mean, I asked my panel and I think that the panel has asked the questions that they wanted to ask.
I wonder whether this shouldn't be regarded as an appropriate point. Because of the constraints of finances that come from the treasury, we will not be able to feed everybody. So we would like to invite the official delegation. Now you have to perhaps you will have to say who the official delegation is, and it may, it may be that points are stretched. Thank you very much. We return at two.
COMMISSION ADJOURNS
ON RESUMPTION:
CHAIRPERSON: I think we want to resume. Mac, I am so loud and you can't hear me. Perhaps we should resume. Thank you very much. There is a question that the Deputy President wants to make.
DR BORAINE: Thank you, Chairperson. Mr Mbeki, and to members of your delegation, you will know that in terms of the Act submissions are heard in public and that is why we are meeting like this for the sake of transparency Parliament decided that that is how the Act should read and of course we are in total agreement with that.
We find ourselves now in an awkward position in that part, one part of the submission made by the ANC is an annexure which is referred to as "For the TRC only", for our eyes only and not to be made available. Now in normal circumstances we have to make available anything which comes to us, because we are a public commission appointed by Parliament. I would like to ask why this has been designated secret and confidential, and whether we can't find a way through this, because certainly it is our normal intention to make available whatever is submitted to us, to the public, on the basis of the right to know.
So I wondered if either you, Mr Mbeki, or any of your colleagues would like to speak to this now. Maybe that we will have to look at it again, but at least we have flagged it. Thank you.
MR MAHARAJ: You will notice from our submission, that even in the handling of confessed enemy agents, we were guided by a policy of rehabilitation. The result is that a number of confessed agents were left to live normal lives, others were assisted to be rehabilitated and this was a policy that ran through our whole practice of how to bring discipline in our organisation. The result is that we are very sensitive about putting names in the public arena. It is a matter that perhaps the Commission would need to look at towards the conclusion of its work.
We are mindful that there are people who worked for the enemy, who were rehabilitated, who came back and settled in this country and are leading normal lives. We would not like to contribute to a culture where people who have made honest confessions are then punished for the rest of their lives, told to leave their jobs and denied the opportunity to become or to remain honest citizens. So that is one particular problem.
The second one is that we believe where agents have not confessed, we believe that they should make their applications through the Amnesty Committee of the TRC, and that they should be dealt with in that spirit and in that way, rather than just throwing a name into the public arena, having public reaction. I don't even want to go and sketch out a scenario that says public revenge may visit some people. But I am talking about a large number of people who were sent into our ranks as enemy agents, who were inefficiently prepared, who didn't manage to do substantial damage and who responded to our treatment. So that's the context in which we have approached this problem.
To emphasise, this was the culture in which we brought up everybody in the ANC. The same approach was adopted in dealing with bona fide members of the organisation. The same approach was used even in most difficult circumstances, almost approaching battlefield situations. So that's the reason why we have put this before the Commission in a confidential set of documents, so confidential that some of us, as you would have noticed this morning, some of us hadn't seen it ourselves. Because we thought this is not the type of information that should be just leaked and leaked without a process to manage it.
So that's my explanation, Sir, and I hope the Commission will find some way, certainly we would support the view that towards the end of its work the Commission while looking at the victims, should look at those who wereperpetrators of human rights violations and how they are disclosed to have committed those violations without necessarily destroying their future lives. DR BORAINE: Mr Mac Maharaj, thank you very much. Obviously the Commission is very, very sensitive about divulging names who may be at risk, in particular, the one point that you made.
We as a Commission and as a panel have not had the opportunity to consider and to weigh up your reply, and you will appreciate that we will have to do that now that we have got that explanation. We will do this as a matter of some urgency. We have to keep in mind victims of gross human rights violations who are extremely critical of any information that is withheld from them, which may explain some of their own situation. You will appreciate that we have to be extremely careful as far as that is concerned and secondly, obviously the transparency of the Commission is fundamental, not to the loss of life of course, but that certainly is a very important factor. I don't want to delay the proceedings now, but we will certainly have to meet and come back to you. Thank you.
CHAIRPERSON: Thank you. MR ZUMA: Could I just ...
CHAIRPERSON: Yes, thank you, Mr Zuma?
MR ZUMA: Thank you. We think that we might, probably outside of this problem later in the day, just do a bit of an exchange on this one as well, so that the Commission is with us in terms of understanding our motivation. I just wanted to make an example of this in a different context and Commissioner, Dr Mgojo is aware that one person was called to testify in public, the proceedings were disrupted by people who entered and wanted to squeeze his neck totally. I later had some occasion to talk to the Commissioner here, that we needed to balance between what we are doing to bring about reconciliation and also what we do that could open up fresh wounds, to those who are aggrieved and to those who are victims. So it is a question of how do we balance this and how to deal with it. Because if we are just going to say as long as the information is demanded, irrespective of the consequences, I think that will be a rather callous way of dealing with it. So we think we needed to have a way to discuss it from our point of view, so that you could understand what our kind of feeling is. I was just adding the point that it might be useful, to have an exchange again confidentially so that you understand our feelings.
CHAIRPERSON: Wynand Malan?
MR MALAN: Chairperson, if I may, when you discuss this, also suggest that you take into account the earlier demand from your organisation, that the names of those referred to as informers at one of the amnesty applications be disclosed, that you look at it in a global sense because I think to a large extent the same principles apply.
CHAIRPERSON: We are going to, I think we would have to deal with it as the Commission and we have our next plenary session on Thursday. We are going to be governed by the principles that have always governed us, which is that we do not sit as it were, hatching plots with different groups of people.
It is quite crucial for the integrity of this operation that we are the ones who take the decisions about what information we are going to disclose. We take into account all sorts of factors in this regard and one of them would be that we would need to have some substantiation of allegations that people did such and such and such or were enemies of, rather were agents of the old system and also the fact that we would require to give such people, if they are still alive, for instance, the opportunity of being able to respond in terms of the Appellate Division decision. That is a decision that we took as the Commission, but we would in this particular instance have to be weighing again, but those are the principles and I have to say that I mean, we would need a fair degree of persuasion to withhold information rather than share the information.
MR MAHARAJ: May I Mr Chairperson, I am sorry to hold you up, may I just mention one other factor that needs to be taken into consideration. That is our request that informers in the Cabinet be made known. This is a high office. The government needs to enjoy the confidence of the people, and allegations have been made and we need to take into consideration the high office that people may be occupying, because then I think that it is appropriate that with due consideration of the person being named, that the matter could be made public because I think it serves to reinforce the process of building ...(indistinct).
CHAIRPERSON: Hanif?
MR VALLY: Thank you Archbishop. I am going onto a new topic which is "Disappearances". I am not going to go into it in detail. We thank the ANC for the list that has been provided to us of those members who died in exile and those who died in combat. However we've got a number of requests at our hearings regarding family members who believe that their family members may be with the ANC or may have been with the ANC. In some cases people claim they have information from the ANC that the family members died and they don't believe them. In other cases it's possible the family member died in combat or it's also possible that the family member was in exile but not with the ANC. But because these requests are on-going I think it will be best if we submit it to the ANC in writing. No purpose will be served in presenting it to you now.
DEPUTY PRESIDENT MBEKI: If I may Chairperson, I appreciate the point that Mr Vallye is making because indeed there have been many instances of people coming directly to us in the firm belief that their relatives were with us when in fact they were not. There is one very well known case - there's that famous picture of a student carrying the body of Hector Petersen, now that student ended up in Nigeria, I was with him in Nigeria when he came there as a student. He was in that group of students but he was not in the ANC, and when the students left, completed, he vanished there, but the belief that he was with us and so you will see - that kind of thing keeps happening. The point that you are making that in many instances many or some of these people anyway went with the ANC, the assumption that they were is wrong. So it would indeed help if we had these names so that we can track as best as we can. We would be willing, and this has happened before, also to assist with regard to those people who were not with us and to the extent that we were able to participate in helping in that search we will certainly do that.
MR VALLY: Thank you very much. Let's go to a new subject. The issue I will discuss now is under the broad heading "Military Operations", but I want to start off by looking at the Geneva Convention, specifically Protocol 1, additional to the Geneva Convention of the 12th of August 1949 relating to the protection of victims of international armed conflicts 1977. This was the Protocol which was signed by the ANC and I believe they are justifiably proud that they were the first liberation movement to sign it in 1980. I want to just draw the ANC's attention to certain sections which are relevant to the questioning in this area. I refer specifically to Article 51,
"51.2 The civilian population as such, as well as individual civilians shall not be the object of attack, acts or threats of violence the primary purpose of which is to spread terror amongst the civilian are prohibited.
51.3 Civilians shall enjoy the protection afforded by this section unless and for such time as they take a direct part in the hostilities.
51.4 Indiscriminate attacks are prohibited. Indiscriminate attacks are:
a. those which are not directed at a specific military objective;
b. those which employ a method or means of combat which cannot be directed at a specific military objective; or
c. those which employ a method or means of combat the effects of which cannot be limited as required by this protocol, and consequently in each such case are of a nature to strike military objectives and civilians, or civilian objects without distinction".
Now those are the particularly relevant sections I want to deal with when I come to the issue of bombing, planting of bombs by the ANC.
If one looks at the first submission by the ANC, page 52, and the resolutions taken at the Kabwe Conference, President Tambo, on page 52, first paragraph, left-hand column, I will just read the last sentence, if there's any other sections that you want to draw our attention to please feel free, made a statement at a press conference;
"The distinction between "hard" and "soft" targets is going to disappear in an intensified confrontation in an escalating conflict".
The direct result of the resolution taken at the Kabwe Conference, and there are a number of other quotes by, amongst others, Chris Hani, on the issue, resulted in a lot more bombs being planted closer or near residential areas. My first question, and I say this because of the ANC's own position later on, my first question is, wasn't this blurring of the distinction between "hard" and "soft" targets in direct contravention of those subsections of the Geneva Convention, Protocol 1 of the Geneva Convention which I just read which the ANC signed in 1980, bearing in mind that the resolutions from the Kabwe Conference were taken in 1985?
MR MAHARAJ: We signed the Geneva Convention after very careful consideration in all seriousness. But Mr Chairperson we were conducting a struggle in a real situation. It was not our choice that we resorted to the armed struggle, and in the same way, to the extent what could be called by Mr Vallye "a blurring" of the lines occurred. It was against our choice.
I would like to deal with the question of the actual situation. We were a guerilla army and unlike a conventional force where planning takes place at headquarters level, our planning had to take place at the unit and individual level where decisions sometimes had to be taken on the feet. We trained our cadres to first and foremost think and act politically and not alienate those we were seeking to bring onto the side of our struggle, even in the White community. But the apartheid regime never, never till we ended the armed struggle accorded our people any treatment as prisoners of war. In fact when I went to prison in 1964 we were called just "Bandite", ordinary criminals, not even terrorists, terrorists came later. So they never accorded us prisoner of war status. They never supported any international convention.
Our cadres also had to operate in the political context where sometimes they reacted with anger as to what they saw happening to our people on the ground. And 1984 was a particularly horrendous chapter in our country where thousands of people were dealt with in the most brutal fashion.
Then the gathering of intelligence was also the responsibility, tactical intelligence was the responsibility of the units on the ground, and here particular difficulties arose. Sometimes the information was wrong but at other times the information showed that the prime military targets were located in the heart of commercial and civilian areas. I myself came into the country, the 7th Battalion headquarters is located in a residential area on the way to Johannesburg Airport, and yet it is located at a point where there is a large open ground on the fourth side and I was sorely tempted, when I looked at political circumstances in the country to sometimes deviate from my mission and attack that headquarters, even if some of the houses were raised to the ground, and I went so far as to look at the houses and try and investigate who was living there. I was so sorely tempted that I had come to the conclusion that most of the houses were occupied by the top officers from that battalion. So I am saying how that was another particular difficulty when you came to adhering fully to the Geneva Convention.
Then at times our operations had to take place on the ground in support of the campaigns and struggles of the people. Again you had to locate yourself within the community and so this was another practical condition.
Then there is the reality that there were very long and insecure lines of communication, command and control, and the question of how we maintain discipline in a guerilla army, a political force. It's not the way it's done in a conventional army, by straight rules and regulations whereas in a guerilla force we rely on discipline through self-understanding and commitment to the objectives of the cause that we are serving.
So when President Tambo made that remark after the Kabwe Conference, he said very clearly that we were meeting at Kabwe two days after a massacre in Gaberone, and the essential point he made, not because he was unmindful of our signing the Geneva Convention, but because he was very mindful, he said when Gaberone was attacked we did not complain that soft targets were being hit because they have been hitting them all this time. What we did was to re-commit ourselves to intensifying the struggle, to saying that some of the restraints that we had placed on ourselves as to how we conduct the struggle would need to be relaxed. And in particular I would say then that where a military installation was in a commercial or civilian area, that restraint that we placed on ourselves had to be relaxed. But still, as I illustrate from my own case, we had to think very carefully. So those were the circumstances.
And I would say that like human rights was uppermost in our minds and that we were fighting for a society which would establish individual human rights for the first time in our country, in the same way we were very, very mindful that the tactics of the apartheid regime were drawing us into a morass where the rules of the games were likely to reduce an honourable struggle and besmear it, and we tried to avoid it.
So our commitment to the Geneva Convention was in that context a very real commitment and one which we constantly strove to measure up to. We could not follow other rules. We could not follow rules that said we should wear uniforms when we walked into the country and engaged in combat, we had to wear civilian clothes. The people were our protection.
CHAIRPERSON: Which one of you is it, Ronnie Kasrils?
MR R KASRILS: Thank you Archbishop. I would just like to add to what's been said. I think that we really need to very finely analyse what the late Comrade Oliver Tambo had to say in context, as well as Chris Hani, the late, on that very page, because these statements that they both made form part of a major statement to the press. And the question that's been put looks at the Geneva Protocol and we thank the presenter for that. In terms of that Geneva Protocol I think what's salient is that 51.2, "Civilians should not be the object of attack and there should not be indiscriminate attack", Archbishop.
Now if you examine what Oliver said and what Chris Hani said they both are saying the opposite to this. Chris Hani says Umkhonto is a revolutionary army and is not going to embark on mayhem against White civilians. Oliver Tambo is constantly throughout the period saying we will not see civilians as the object of the attack. And if we look at his statement to the press he's talking about soft targets, but he's saying over the past nine to ten months there have been many soft targets hit by the enemy. He's using it that way. What they are both saying is that the struggle is intensifying, it was intensifying before all our eyes, at that time. It was going to intensify. We were taking the struggle to the White areas in the sense that this is where military and police personnel were, economic targets etc, and in that process obviously there were going to be casualties, but civilians as such would not be the object of attack and the attacks would not be indiscriminate.
So we are dealing with a very fine area. Very often politicians of all countries at war, from Churchill to everybody else, to Roosevelt, to those in charge today where wars take place, there is the talk about the crossfire. It's a very euphemistic term, we all know it, but we know that within wars of conflict this does emerge, and in that sense Tambo and Hani, I would contend, are no different to the kind of statements that would be made by leaders of the civilised world whose bombs were dropping at Churchill's or Roosevelt's behest where you had thousands and tens of thousands of people dying, actual civilians, because of a war effort. I am just basically saying that we must see every single statement within the context here. And I would like to respond that way. Thank you.
CHAIRPERSON: Thank you. Is there any one else? Matthews Phosa, Premier.
PREMIER MATTHEWS PHOSA: Thank you Chairperson. I would like to start by saying that in fact in waging the armed struggle we broke very few eggs to make a huge omelette. If you look at section 51.2 and look at the policy of the ANC, you look at 51.3 and the following subsections, I think in the difficult situation of not being government, not having the certainty of the lines of command and control, the ANC tried as far as possible to live up to its commitment under the Geneva Convention. Chairperson we could have used anti-personnel mines, but we did not. We used the three, the heavy ones which could not be detonated by merely stamp