The Justice Game

by Geoffrey Robertson

  Judges in South Africa were not all like Van Rhyn and Human: many, especially at appellate level, maintained a fidelity to law unfazed by the pressure of apartheid politics. This in turn sustained an independent Bar and a trial and inquest system which withstood emergency legislation and provided arenas where some truth about State-sponsored killings could emerge through the adversary system. But the scale of human-rights abuse later revealed by Bishop Tutu’s ‘Truth and Reconciliation Commission’ shows how much stayed hidden. South Africa was putting on a show with trials and appeals which suggested that justice, if not in robust health, was at least still breathing. At a submerged level, the enemies who did matter were simply executed without trial or even arrest. Once, in Easter 1988, I strayed within that mine field.

  I had flown to war-torn Mozambique on behalf of a young Australian missionary who was facing a firing squad. Ian Gray had been arrested by government soldiers as he distributed Bibles from his combi-van in the bush. Inside one of them were messages he was carrying to the leader of Renamo, a rebel force in bloodthirsty combat with the Marxist government. He was accused of spying – a charge to which he had no defence and the punishment for which was death, unless the Revolutionary Military Tribunal could be persuaded to be merciful. Renamo was not even an anti-Marxist movement, but a group of thugs and desperadoes originally recruited and trained by Rhodesia’s white army to destabilise a hostile neighbour. Subsequently it was run by the South African intelligence services, for the same political purpose: Mozambique was the most strident anti-apartheid front-line state and its army had to be kept occupied. Renamo forces raped and murdered tens of thousands of Mozambiquans each year, and its scorched-earth pillages were causing famine in some parts of the country. How had the love of Christ brought an idealistic youth from Too-woomba to serve the most vicious army in Africa?

  Ian had fallen in with some American fundamentalists trained at a Bible college in Florida founded and funded by Jimmy Swaggert, a prominent American tele-evangelist. They had been brainwashed into believing that the Lord required a crusade against communism in all its forms, and they convinced Ian of their cause after they recruited him, an innocent abroad, at a pentecostalist meeting in Malawi. Ian was convinced by these new friends that Marxist Mozambique had burned the country’s churches and killed its priests and pastors. That is why he agreed to act, under his missionary cover, as the agent of Renamo, smuggling messages which he hid in Bibles to and from its command headquarters in the bush. He was arrested in his Bible-mobile and refused to talk to his army interrogators. He regarded himself as a political prisoner, and was prepared to die in the service of God. What his life depended on was whether he was prepared to confess to his dealings with the enemy, and offer some sort of genuine apology. When I first met him in the police cells, his lips were sealed.

  I respected the sincerity of Ian’s beliefs, but doubted the facts on which they were based. The government of Mozambique was no worse – in some respects, given the enormity of the problems it faced, it was better – than most other African governments. Its capital, Maputo, was full of churches, and there had been no mass slayings – or any slayings at all – of their pastors. As a lawyer I am bound to help would-be martyrs whatever I think of their cause, but I do have a duty to make sure they know the full facts. In this effort I had an invaluable ally: Ian’s father, providentially flown to Maputo the next day by 60 Minutes, an Australian current-affairs programme, and even more providentially taken, on the night of his arrival, to one of the city’s burgeoning pentecostalist churches.

  The Gray family belonged to a pentecostalist church whose members spoke in tongues. The tongue in which Mr Gray spoke to his son in the cells the next morning, however, was the broadest Australian. ‘You stupid bastard. Do you realise what you have been doing to these good people? You’ve been helping to kill them. I went to church with them last night, son. There must have been a thousand of them, and do you know what they did? They prayed for you, they got down on the floor with me and they prayed for you, and we spoke in tongues and asked the Lord to forgive you . . .’ The two fell weeping into each other’s arms, the father’s simple faith breaking his son’s mental block in a way no legal advice could ever do. He agreed to help us in the effort to save his own life.

  I was not willing for Ian to plead ‘guilty’ to a crime for which he could be executed, or face long years in appalling prisons. Mozambique was a country at war, and its court system was rudimentary: Ian’s fate would be decided in secret by a court which frequently handed down death sentences, and it had never allowed legal representation. I needed help, and it was given unstintingly by Albie Sachs, the brilliant South African lawyer exiled in Mozambique as a result of his support for the African National Congress. Albie introduced me to various ministers, translated pleas and submissions, advised on tactics and obtained permission for me to address the Revolutionary Military Tribunal on Ian’s behalf. My address to his three uniformed judges, whose own lives were daily threatened by the enemy whom Ian had helped, was the most difficult piece of advocacy I have been called upon to deliver. The upshot was a judgment in which Ian’s naivety and contrition saved him from the death sentence, and limited his various treasons to a term of imprisonment from which he was released, through an amnesty, one year later.

  Albie had proved a marvellous guide and counsellor and friend, collecting me from the colonial ruins of the Paloma Hotel in his beaten-up red Fiat for trips to lobby ministers and diplomats. He showed me the city sights, which ranged from revolutionary wall murals to the husband of the US Ambassador, an eccentric Anglophile who had imported a London black cab and drove it each day on the main road, stopping to offer free rides to surprised pedestrians. I once asked Albie whether he took any security precautions – his friend Ruth First (wife of ANC military leader Joe Slovo) had been killed by a letter bomb in Maputo, and his account of his own detention, The Jail Diary of Albie Sachs, was in print throughout the world, to the discomfort of the South African security service. He gave a self-deprecating shrug: ‘I suppose I should check under my car, but that was all so long ago. I really can’t believe I’m still significant enough to be on the hit list.’ When Ian’s trial ended, he invited me to stay with him for a few days’ holiday at the beach.

  I accepted, but first I had to try to call my chambers. The telephone system at the Paloma was erratic, and I had been incommunicado with London for the past week. Finally, I was put through to Michael, my clerk:

  ‘Thank heavens you’ve called, Mr Robertson. We’ve been desperate to contact you, sir.’ (Nothing can bring a clerk to use a barrister’s Christian name.)

  ‘Michael, what’s the matter?’

  ‘You’ve got silk, sir. You must come back to London immediately, or you’ll miss the ceremony.’

  ‘Has it been announced in The Times?’ I asked disbelievingly.

  ‘Well, no, sir. But your envelope is the right size.’

  This is typical of the Bar: clerks tell from the size of the envelope from the Lord Chancellor’s Department whether it contains a slim rejection slip or bulky instructions about how to dress in a silk gown, full-bottomed wig, lace ruff, and silver-buckled shoes for investiture as a Queen’s Counsel. At this ceremony, if I could make it, I would share the joy of generations of upper-class Englishmen, of being able to wear silk stockings and a suspender belt without embarrassment. I looked out the window, at the sprawling slums of war-torn, famine-ridden Maputo, and I saw the black cab. It seemed like Cinderella’s carriage, come to take me back to the pantomime in London.

  It was not easy, at this time, to leave Maputo. The road to South Africa had been cut by Renamo, and air transport was sporadic and fully booked. I said farewell to Albie, forgoing with real regret the days with him at the beach, to catch a flight to Swaziland, where I stayed overnight and watched ‘The Jimmy Swaggert Bible Hour’ on Swazi television. (Swaggert had recently been discredited by his communion with prostitutes in New Orleans motels, but his organisatio
n was paying vast sums to offload his programmes on the cash-strapped television stations of emergent countries.) I then drove to Johannesburg, and took the overnight flight into Heathrow, where I collected a copy of the Financial Times and saw the photograph of Albie on the front page. He was lying beside his crumpled car, one arm in the road a distance from his body, a leg twisted away from his torso. The bomb, said the report, had been activated when he opened the door of his car to drive to the beach.

  Albie was put together again miraculously, and is now a judge of South Africa’s Constitutional Court where he has joined with Chief Justice Ismail Mahomed in outlawing the death penalty. His own had been passed in secret. I had already mourned, although without anger, the death of Molly Blackburn, whose heroic life had been wasted in the kind of accident so common on South African roads: the brakes of her car failed. That, Bishop Tutu’s commission recently discovered, was because they had been tampered with – by men from the secret State. The Bishop now offers an amnesty to killers in return for their confessions, which seems over-charitable. Punishment left to history or to God does not deter the brazen or the Godless, and most State killers are both. For all the difficulties of proving guilt without a confession, some murders are so heinous that a trial is the only proper response. That was certainly my opinion in the case of Dr Hastings Banda.

  In the Commonwealth cruelty league of leaders who have kissed the hand of the Queen and received the blessing of Margaret Thatcher, Banda’s was the most atavistic presence. By 1983 his control over Malawi was such that when discomfited by some mild criticisms from Parliament’s four leading members, he gave orders to his British-trained Chief Inspector of Police to have them killed. The police chief agonised but carried out these orders: a ‘special duties’ squad (some trained at Hendon police college) arrested the cabinet ministers, took them by night to a lonely stretch of road, and quite literally bashed their brains out. They put the bodies in a car and pushed it over a cliff, and the Cabinet Secretary announced that the four had met with a road accident. There was no inquest, as the law required, because Hastings Banda was the law. There was no mourning permitted for Dick Matenje (the Secretary of Banda’s Malawi Congress Party and Deputy Prime Minister) or for his three colleagues. There were no coffins, either. Their bodies were delivered to their families in dirty blankets, not only dead but dishonoured. Their names were never mentioned in official records again: they became ‘non-persons’. Banda’s crime was well known to Britain, but it said nothing. (Malawi was providing important support for Mrs Thatcher’s appeasement of apartheid.) It was well known to members of the State’s only political organisation, the Malawi Congress Party, because the death squad had stopped at its office in Blantyre and paraded Matenje through it, escorting him obviously to his execution. It was a bestial act, the one which most contributed to the fear which was all-pervasive amongst Malawi’s nine million citizens.

  I did not meet Dr Banda until 1992, by which time he had been running the country for twenty-eight years, for most of that time personally enshrined in its Constitution as President for Life. His was the familiar colonial story: briefly imprisoned by the British; released to become the leader on independence; quickly dispensing with democracy (or at least with all political parties other than his own, which is pretty much the same thing) and then proceeding to use British law – indeed the emergency legislation under which he himself had been detained – to suppress all dissent, helped by British lawyers. His landlocked country was kept in fear of his secret police and even greater fear of his paramilitary loyalists, the ‘Young Pioneers’. The army he kept weak (a lesson well learned from the overthrow of other African leaders), television was banned and developments in the outside world were filtered through the nation’s only radio station and newspaper, which he owned. Regular celebrations of himself, Hastings Kamuzu Banda, were held on ‘Kamuzu days’, in which regiments of women would dance for him and sing his praises. It was a crime to be found in possession of any Simon and Garfunkel album featuring the song ‘Cecilia’ which might lead to lack of respect for his mistress Cecilia Kadzimira, whom he dubbed the nation’s ‘official hostess’.

  Dr Banda was not by any means senile, although aged over ninety, with a leathery face wizened as a turtle’s. ‘Ah, you have brought with you a Mbumba!’ (a woman, in the Chichewa language) he chortled as he greeted our human rights delegation. ‘I am so pleased you have brought Mbumba. I am Nkhoswe (or powerful man, in Chichewa) and I like Mbumba! All Mbumbas in Malawi love their Nkhoswe! They love me and I love them. Wherever I go in Malawi the women sing and dance for me! I am Nkhoswe, you Mbumba!’ These ‘Me Tarzan, you Jane’ remarks were addressed to Jane Deighton, a North London solicitor renowned for bringing cases of sexual harassment, and for a moment I had visions of her reacting in a manner which would give our delegation an unrivalled opportunity to observe Malawi’s prison system from the inside.

  Banda waved his ornate ebony fly-whisk and ordered his attendant ministers to explain Malawi to us. They told us that it was a State which embodied the rule of law: the Constitution laid down that there shall be only one party, and there was. They were proud of the British laws they had inherited – like the law of sedition, currently being used to jail a trade unionist for saying that Banda was too old to lead the country. They were importing a British QC to prosecute him, to show the world they were fair. British lawyers had helped Dr Banda establish his justice system, in which serious crimes like murders were tried in ‘traditional courts’ run by tribal chiefs, whose hearings were in secret and where defence counsel were not permitted. Mr John Tembo, the Minister of State, explained that ‘President Banda is a highly educated, civilised man, who is very generous in accommodating other people’s views. He is loved by his people – you should have seen the crowd singing and dancing for him when he opened a new dam in Lilongwe two days ago. You come from a country which is well known for the Birmingham Six and the Guildford Four and the Maguires. We do not have miscarriages of justice like this in our traditional courts.’

  It was clear that Minister Tembo was an avid reader of the Observer, then owned by Lonrho, which in partnership with Banda’s private company, Press Holdings (managed by Tembo) was exploiting what wealth there was left in Malawi. There was not much left: the World Bank had in 1989 rated Malawi among the six poorest countries in the world, with a per capita GNP of $160, an infant mortality rate of 15.35%, an average life expectancy of merely forty-six years and a literacy rate of barely 25%. Twenty-eight years of Dr Banda’s rule had brought few benefits, other than to Lonrho and the Life President and his friends and relations. You would not have thought so, to hear him speak; the minutes give some flavour of our meeting:

  Malawi is one of the most prosperous countries in Africa. It is a star performer. The IMF and World Bank are full of praise. This makes me very happy. People are rich in Malawi, not the ministers but the ordinary people in the villages who are growing maize and tobacco and groundnuts. There is no poverty, the villagers are prosperous. They have food, decent clothing, houses with roofs that do not leak when it rains – glob! glob! glob! [the Life President indicates with his hand how the rain water was prone to drip down] – because in Malawi when it rains it pours! My people are happy. They dance for me and they sing for me. You are very welcome here because you have brought a Mbumba with you.

  This man had the power of life and death over nine million people. What I remember most vividly from our audience was Banda’s Mikado laugh, a kind of hacking, chortling paroxysm which shook him whenever he mentioned the death of an opponent. It wracked him when he mentioned Dick Matenje; it possessed him almost hysterically when he mentioned Aaron Gadama (a Minister for Health who was murdered for daring to suggest that Press Holdings be taking into public ownership). I told him that we had found fear more extensive than food: fear at every level, even among his own ministers, that they would suffer violent reprisals if they spoke or even thought critically of the government. His people were not happy, h
owever much they might be organised to dance and sing for the Life President. Banda replied that his ‘one party State was ‘just born’ because ‘the other parties died a natural death’ (unlike his opponents). He said goodbye as effusively as he had greeted us.

  Those who glibly idealise a life without lawyers should have lived in Dr Banda’s Malawi. By 1992, there were only ninety-seven lawyers for nine million people, the lowest ratio in any country in the world. It showed – in the hopelessness the people felt about ever winning a case against the State. I remember most vividly the low voices in which church leaders and judges spoke when whispering to us even the mildest criticisms of the way in which the country was run. Spies were everywhere, and punishment was at the whim of the Life President. After his fall, some secret memoranda were discovered in which his Chief of Police (who had organized the killings of the cabinet ministers) sought his instructions for dealing with citizens: