The Justice Game

by Geoffrey Robertson

  Your Excellency, I have the honour to report that police have arrested Mr Henderson B Mfipa for subversion. At the time of the arrest, police searched his house and found Communist literature – Marxism Today, Spy Counter Spy and What is to be Done? by Lenin. He graduated BA, joined government service as a teacher and became a District Commissioner. May I be directed by your Excellency in this matter?

  Banda’s orders, scrawled in the margin, were ‘Have this man arrested, tried, imprisoned and after whatever sentence he serves, he must be detained indefinitely’.

  Another secret memo from the Chief of Police:

  Your Excellency, I have the honour to report a request to issue a passport to Thokozani Manyika Banda to go to the USA for studies. The government has approved the trip. Taking into account the fact that you are the minister responsible for matters of immigration may I have the formal approval of your Excellency before Immigration issues the passport? I am, sir, your Excellency’s most obedient servant.

  On it Banda wrote ‘Pick the man up right away and lock him away forever’. His only crime had been to come to Dr Banda’s attention, and to be the son of a man whom the Life President did not like.

  The revolution in Malawi had its spark a few months before our visit, when the country’s Catholic bishops issued a pastoral letter protesting at Banda’s repression. Initially, the MCP planned to kill them, but the country was by now only surviving upon international aid and the donor nations were becoming nervous about Malawi’s appalling human-rights record. Even Douglas Hurd, so backward in appreciation of human rights, at long last voiced criticisms. In September, the formation of an opposition party was announced: our lawyer hosts allowed their names to be published amongst its founders, hoping that our presence would help them survive, as at least we would observe their disappearance. A dangerous moment passed, thanks to the threat that the foreign-aid tap would be turned off. Banda and Tembo decided instead to play democracy at its own game and win: immediate multi-party elections were announced, because they did not think that new parties could organise in time. They were proved wrong when the people, forced for three decades to dance and sing for Banda, turned out in force to vote him down. At a Commission of Inquiry established by the new government, the police officers who had carried out the conspiracy to kill the four cabinet ministers confessed their guilt. There was only one person in Malawi who could have given the order to his Bramshill-trained Chief of Police to perpetuate a crime of this magnitude, and then order the Whitehall-trained Cabinet Secretary to cover it up.

  The new government wanted to prosecute Banda for murder, which carried the death penalty. I advised them that hanging him was not the way to eradicate the memory of a regime which exterminated its opponents. So he was prosecuted for conspiracy to murder (which carried ten years’ imprisonment) and permitted to remain at his palatial State home during the trial, after medical evidence that he was too old to sit in court and concentrate for more than an hour at a time. It was Malawi’s first murder trial outside the traditional court system, and first jury trial for many years: the judge misunderstood the law of conspiracy and the role of circumstantial evidence, and virtually invited the jury to acquit – which they did. I did not conduct the trial, and although I was later to argue the prosecution’s technical appeal against the acquittal, privately I did not think that the verdict was altogether a bad result. True, a man I believed guilty of a crime against humanity had avoided conviction. But the trial had been conducted openly, under rules which were fair to the defence, and the verdict had established what the defendant himself had deprived his people of for so many years: the precious possibility of innocence.

  Chapter 10

  Show Trials

  Kamenev: I, together with Zinoviev and Trotsky, organised and guided this terrorist conspiracy. I had become convinced that Stalin’s policy was successful and victorious . . . yet we were motivated by boundless hate and by lust for power.

  Vyshinsky: You expressed your loyalty to the party in various articles and statements. Was all this deception on your part?

  Kamenev: No, it was worse than deception.

  Vyshinsky: Perfidy?

  Kamenev: Worse than that!

  Vyshinsky: Worse than deception? Worse than perfidy? Then find a word for it. Treason?

  Kamenev: You have found the word.

  Vyshinsky: Zinoviev, do you confirm this?

  Zinoviev: Yes, I do. Treason, perfidy, double-dealing.

  Stalin’s show trials, 1936–38, are defining events for courtrooms in the twentieth century. The trial process was perverted in order to re-write history, by eliminating those who had made it. Stalin’s confidence trick succeeded because it adhered to the forms of legality: the trials were conducted before judges, the defendants were entitled to lawyers, and their confessions were repeated under Vyshinsky’s dogged questioning. What British left-wing lawyers like D.N. Pritt, who unforgiveably white-washed these mockeries of justice, should have realised was that the confessions had been obtained from men who had spent weeks on ‘the conveyor’: a disorientation technique in which physical discomfort and lack of food and sleep alternated with interrogation to enhance suggestibility and acquiescence. They fell for prosecutor Vyshinsky’s technique for turning their past thoughts into crimes, by constructing a fable about the possible consequences of their opposition to Stalin. In effect, they played out their responsibility for actions to which their thoughts might have led, if they had possessed the courage to act on their convictions. ‘The confession of the accused,’ explained Nikolai Bukharin, the only defendant to retain any self-control, ‘is a medieval principle of justice.’ His own had not only been extracted by ‘psychological pressure’ but because in prison he realised ‘you ask yourself, if you must die, what are you dying for? An absolute black vacuity rises before you, with startling vividness.’ He confessed because he felt his powerlessness before the almighty State he had helped to construct, the impossibility of beating it at the game it chose to play with his life.

  Stalin’s show trials still haunt because they prove how legal systems, with their varying procedural rituals for emphasising objectivity and impartiality and apparent ability to extract the truth, can be vulnerable to political manipulation. As Vyshinsky – the most wicked lawyer of the century – explained in his textbook The Problem of Evaluation of Proof in Criminal Trials, ‘the judge must be a political worker, implacably applying the directives of the Government’. His teaching was taken to heart not only in communist countries, but in certain Commonwealth countries where the colonial courtroom trappings of impartiality – wigs and gowns, the judgments of Lord Denning and the motto Dieu et mon droit – were retained for camouflage. When, in the late eighties, I helped dissidents in communist Czechoslovakia and defended them in democratic Singapore, I felt that the outcome was equally predetermined.

  A fraud trial has just finished in Prague’s shabby central court. The defendant, Karel Srp, has been found guilty of embezzlement, and sentenced to several years in prison. He shrugs and turns to his escorts, who take him down the ill-lit dirty corridors to the van which will carry him back to prison. There is no majesty or drama about these proceedings, no frisson of uncertainty about the verdict. People act like clockwork, as if it’s a pre-arranged business best disposed of as quickly as possible. Everyone involved in the non-descript courtroom seems slightly down-at-heel, and slightly ashamed. Outside on the steps, however, and spilling into the adjacent square, there are several hundred youngish people. No bonfires, no banners even: just quiet courage in being there. The sentence is whispered, heads nod and pass the information on. Then, somewhere in the crowd, the singing starts: a ragged, half-crooning chorus of ‘We shall overcome’. I turn quizzically to Srp’s lawyer, who smiles tightly. ‘You can tell which are the secret police. They are the ones who know all the words.’

  It is 1986, and this is one of the first threads of the velvet revolution which will unravel a few years hence, when Dr Husak and the poli
tical puppets who make up his judiciary and his ‘licensed’ law society will shrug and leave the stage. Srp is in prison whenever I visit Prague to discuss what can be done to help his defence. The issues – why the case is so important, which lawyers can be trusted to handle it, which families of the men arrested with him most need financial support – are explained in a café beside the Vlatava river, by a man who alternates information about political prisoners with observations on the need to revise the map of Middle Europe so disastrously drawn at Yalta. Vàclav Havel is nervous, because the authorities can return him to prison at any moment. When I find I do not have enough Czech money for our meal, I assume I can pay the rest in US dollars, which are accepted with alacrity everywhere in the city. Havel is horrified and explains (I kick myself for not realising) that he would immediately be arrested by the secret police watching us from the far table as an accomplice in black-marketeering. ‘This is the first rule of being a dissident,’ he says. ‘You must scrupulously obey the law.’

  Welcome to communist Prague, home for all lovers of irony. Here only subversives obey the law, secret police sing protest songs to maintain their cover and there is a specific criminal offence of possessing the 1966 edition of the Frank Zappa Songbook. This law is not as funny as it sounds – an eighteen-year-old youth has just been imprisoned under it. ‘He was a dissident,’ Havel says sorrowfully, ‘before he was a man.’ Concern about Zappa dates from 1976, when the Plastic People of the Universe, a rock band which took its name from the songbook, were jailed in the government’s first major assault on alternative culture. Its latest purge is the arrest of Karel Srp and eight of his fellow executives of the Czech Jazz Society, among whose crimes is numbered the publication of a three-volume Encyclopaedia of Rock, a discography which has a large entry on Zappa. Years later, when newly elected President Havel comes to Britain to give a lecture at the Institute of Contemporary Art, he will be asked accusingly by some idiot from Marxism Today why he has wasted valuable time by hosting an official visit by the American rock singer. Havel is lost for words, then politeness gets the better of him. ‘Because . . . well, because he seemed a very nice man.’ It would have taken too long to explain the symbolism, too many imperfect words to conjure up for some pampered English Marxist what it is like to live under constant threat of losing one’s liberty for reading another’s lyric.

  But this really was the case in the eighties. The trial of the ‘Jazz Section’ (bureaucratically it was a ‘section’ of the Czech Musicians’ Union) had been clumsily dressed up as a case of embezzlement. Communist governments had, by this time, learned to deflect international concern about human rights by pretending that dissidents were imprisoned for real crimes rather than for their thoughts. The case against the Jazz Section executives was that they had handled money unlawfully: ‘a crime in your country too’, Czech diplomats would say in London and Washington. But when you discovered what the Czech Jazz Society supplied in return for the money willingly given by its members, the reality of the case became clear. It had charged admission fees for punk rock concerts; it had sponsored a tree-planting in honour of John Lennon; it had sold copies of its Encyclopaedia of Rock with the entry on Zappa; it had mischievously published banned works by subsequently acceptable authors such as Bohumil Hrabal (I Served the King of England) and the Nobel prize-winner, Jaroslav Seifert. Even worse, the Jazz Section had been using funds to forge links with peace movements and ‘green’ parties in Western Europe; it had affiliated to Britain’s Campaign for Nuclear Disarmament and had published material which satirised not only American trident missiles but their Soviet nuclear equivalent, the SS20s.

  The Jazz Section, in the eyes of Dr Husak’s regime, was worse than subversive, it was successful – attracting over 100,000 young supporters to its ‘Rock on the Left Wing’ concerts in the mid-eighties. By this time, however, Moscow was bent on reform and the advent of ‘Glasnost’ was an uncertain time for Prague’s old apparatchiks. ‘What’s the difference between Gorbachev and Dubchek?’ the hardliners would ask themselves, and laugh hopefully at the answer: ‘There is none. Except Gorbachev doesn’t realise it yet.’ They did not realise that Gorbachev’s promise to ‘return to socialist legality’ – any sort of legality, in fact – would prove so potent it would sweep them away. For in Czechoslovakia, legality was a myth of the State’s making. Rules had no application, and judges had no independence: the will of the party was the supreme law. The more I came to understand this legal system – and I tried, over numerous visits – the more evident it became that the fate of the Jazz Section would be decided not by the evidence, but by a telephone call to the judge from a party boss.

  The trick, which took in fraternal delegations of ‘socialist lawyers’ from Britain, was played through the ubiquitous system of licensing, under a regime where nothing was permitted which was not officially approved. The Czech Jazz Society had been founded as a lawful communist organisation and trade union branch (department: jazz) of the Musicians’ Union. At first it organised concerts and social events, and published regular newsletters, but at these properly constructed occasions amateur performers and youthful minds met and combusted, to produce by the early eighties the art and ideas which the tottering regime could not tolerate. So the Ministry of Culture arranged for Karel Srp to be sacked from his job with a State publishing house, and for his lawyer to have his licence to practise withdrawn. They lived by watering gardens and cleaning toilets while organising more concerts – with such success that in October 1984 the Ministry of the Interior issued an emergency decree abolishing the entire Musicians’ Union, and establishing a new one without the jazz department.

  The Jazz Section kept playing, proclaiming its entitlement to legal existence through its membership of the International Jazz Federation (a UNESCO organisation) and lodging an appeal with the Supreme Court. This court existed only on paper, although since the paper it existed upon was the Czech Constitution, this manoeuvre caused much political embarrassment. Eventually the government wearied of the cat and mouse game, and arrested Srp and six of his comrades on charges of ‘unlicensed trading’. Their prosecution was announced to the world as a fraud case, but this was itself a fraud: the society was strictly non-profit, staffed entirely by unpaid volunteers, and all its income after its licence was withdrawn had been used for publications and concerts for the benefit of its members. It was for the content of these publications, and the talk at the concerts, that the Jazz Section had to be silenced.

  Nobody was fooled. Not even the British Foreign Office, so myopic in the face of human rights abuse in friendly countries like Malawi and Kenya and Singapore. At international conferences the UK quoted an aphorism from Norman St John Stevas (‘There is no such thing as socialist art. There is only good art and bad art’) which entirely missed the point. The art being promulgated by the Jazz Section was often dreadful: leafing through the collections of Samizdat proudly produced from beneath the Prague floorboards, I was irresistibly reminded of the colourful effusions from Oz and the underground press which had been prosecuted in Britain in the previous decade. As Havel would impress upon me at our meetings, the case of the Jazz Section had to be recognised by the left in the West as a critical test of whether ‘socialist legality’ could sufficiently respect human rights to allow kindred human spirits to make music and art and even criticism of the State across the doctrinal divide. It was a test which ‘socialist legality’ critically failed: Srp went to prison, and in due course the system which had betrayed the good in socialism died of shame. Havel went to the Castle in Prague as its first President, welcoming Frank Zappa and appointing the lawyer who had defended Karel Srp to the post of Chief Justice.

  I have never much liked jazz – you keep thinking it will turn into a tune, and it doesn’t. So I could not at first understand why it was suppressed as ‘decadent’ by the Nazis and why it was so feared by the geriatrics in power in Czechoslovakia. I would watch them as they hobbled, straitjacketed in dinner suits, to the best
seats in Prague’s half-empty Opera House to applaud productions of Smetana’s work which were as old and dreary as they. The answer became obvious one evening when I was taken to an ‘official’ jazz concert. Through another exquisite irony, the government attempted to show the West that it was not afraid of music by establishing its own jazz society to replace Srp’s disbanded union: in a propaganda frenzy it arranged concerts to which it invited Herbie Hancock and Mike Westbrook, carefully scheduling them after midnight on Sunday. But that was when the youth of Prague turned up, after the sclerotic Russian ‘Big Bands’ (old men in suits playing Glenn Miller) had left the stage. The place came alive, and I realised why totalitarians distrust jazz – because it’s music you can talk under. The talk under the jazz that early morning at the Lucerna Theatre was of the stupidity of the secret police, who had arrested one local band when they realised that its seemingly anodyne title – PPU – was a coded reference to the banned Plastic People of the Universe. It took only three years before the audience dispensed with its musical camouflage and, led by Havel, packed into the same theatre to talk about democracy.

  After the velvet revolution, the ironies became over-wrought. Some of us who had supported the dissidents were invited back to help to draft new laws: our hosts delighted in holding conferences in buildings formerly used to train the secret police who had shadowed us, and housing us in the hideously decorated dachas built for visiting communist apparatchiks. (It soon became apparent, however, that the new government needed no help with human rights: what it desperately wanted was guidance in drafting laws for commerce and the conveyance of private property.) My own guide from dissident days, Jaroslav Koran, the translator of Kurt Vonnegut, was elected mayor of Prague, whereupon he decorated the Town Hall with abstract art and employed the Jazz Section to organise the city’s garbage collection, which in consequence became chaotic. The former communist mayor found a job as editor of the newly launched Czech Playboy. At last I had the pleasure of drinking with Karel Srp, who was now running an arts laboratory on the site of a secret police interrogation centre. One of Havel’s first acts had been to make him Deputy Minister of Culture, but once a maverick always a maverick: this great provocateur had soon resigned, to find his true freedom in satirising the new regime. The next time he is prosecuted, he will at least have the possibility of being found innocent.