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South West : travesty of trust; the expert papers and findings of the International Conference on South , Oxford, 23-26 March 1966, with a postscript by Iain MacGibbon on the 1966 judgement of the International Court of Justice

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Author/Creator Segal, Ronald (editor); First, Ruth (editor) Date 1967 Resource type Books Language English Subject Coverage (spatial) Source Northwestern University Libraries, Melville J. Herskovits Library of African Studies, 968.8 I61s Rights By kind permission of Ronald Segal and Gillian Slovo. Description Preface; The Case for International Action. Gensis: From Conquest to Mandate: , by Helmut Bley; The Origins of the 'Sacred Trust' by Wm. Roger Louis; Blacks to the Wall, by Robert L. Bradford. Inside South West Africa: Techniques of Domination: 's , by H.J. Simons; The Legal Apparatus of , by J. Kozonguizi and A. O'Dowd; The South West African Economy, by Sean Gervasi; The Economic Relationship with South Africa, by Robert B. Sutcliffe; The Condition of People, by J. Rogaly; The Land Theft, by ; The Labour Force, by Charles Kuraisa; Education Policy and Results, by Marcia Kennedy McGill; Experiences as a Student and as a Teacher, by Gottfried ; The Odendaal Report: Social and Economic Aspects, by Absolom L. Vilakazi; The Defence (sic) Position, by Richard Gott. The Abuse of Responsibility: From Mandates to Trusts, by Eduardo C. Mondlane; The Legal Case, by Iain MacGibbon. The Conference Findings. Postscript: The International Court Decides?, by Iain MacGibbon. Format extent 347 pages (length/size)

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South West Africa: Travesty of Trust

South West Africa: Travesty of Trust The expert papers and findings of the International Conference on South West Africa,, Oxford 23 - 26 March 1966, with a postscript by lain MacGibbon on the 1966 Judgement of the International Court of Justice. Edited by Ronald Segal and ANDRE DEUTSCH

FIRST PUBLISHED 1967 BY ANDRE DEUTSCH LIMITED 105 GREAT RUSSELL STREET LONDON WCI COPYRIGHT @ 1967 BY THE STEERING COMMITTEE OF THE INTERNATIONAL CONFERENCE ON ECONOMIC SANCTIONS AGAINST SOUTH AFRICA ALL RIGHTS RESERVED PRINTED IN GREAT BRITAIN BY EBENEZER BAYLIS AND SON LTD THE TRINITY PRESS WORCESTER, AND LONDON (.7'I l",./ /( ji *7:-J, S _-2_ -; ;:-

Contents Preface by Ronald Segal 1 THE CASE FOR INTERNATIONAL ACTION by The Conference Steering Committee 13 2 GENESIS: FROM CONQUEST TO MANDATE 35 German South West Africa by Helmut Bley The Origins of the 'Sacred Trust' by Win. Roger Louis J Blacks to the Wall by Robert L. Bradford 3 INSIDE SOUTH WEST AFRICA 103 J Techniques of Domination: South Africa's Colonialism by H. J. Simons The Legal Apparatus of Apartheid by J. Kozonguizi and A. O'Dowd The South West African Economy by Sean Gervasi J The Economic Relationship with South Africa by Robert B. Sutcliffe The Condition of the People by J. Rogaly The Land Theft by Zedekia Ngavirue The Labour Force by Charles Kuraisa Education Policy and Results by Marcia Kennedy McGill Experiences as a Student and as a Teacher by Gottfried Hage Geingob The Odendaal Report: social and Economic Aspects by Absolom L. Vilakazi The Defence Position by Richard Gott 4 THE ABUSE OF RESPONSIBILITY 267 From Mandates to Trusts by Eduardo C. Mondlane The Legal Case by lain MacGibbon 5 THE CONFERENCE FINDINGS 307 6 POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? by lain MacGibbon 329 INDEX

Preface In April 1964 there was held at London a four-day International Conference on Economic Sanctions against South Africa, organized by a Steering Committee of individuals and delegates from movements, South African and British, opposed to apartheid. Our purpose was to submit economic sanctions to the scrutiny of impartial intelligence; to establish whether - as we ourselves believed - they constituted a feasible and effective means of forcing white South Africa to abandon its racial policies; and, if our belief was confirmed, to fortify the campaign for international intervention with the prospect of appropriate tactics. To the Conference we accordingly invited - along with delegates and observers from governing and opposition parties, trade union federations and pressure groups, in several dozen countries individual experts, economists and international lawyers, historians and military strategists, distinguished not only by their competence and reputations, but by the absence of any known commitment on the issues to be examined. The papers that they prepared, with the findings and recommendations of the Conference, comprised the official record, which was dispatched to all governments, considered by the , and subsequently published as a book." The Steering Committee remained in existence to promote the Conference recommendations - chief of which was the unanimous conclusion that a programme of total economic sanctions against South Africa would be practical and effective - and when we were approached by a leading member of the resistance movement in South West Africa to organize another conference, on the crisis for international responsibility presented by South Africa's continued possession of the mandate, we decided that this fell properly within our purposes. We were much encouraged by the success of the first conference, which had substantially contributed to removing economic sanctions from the realm of fantasy and setting them in the context of practical, if still contentious, politics. If we were now

PREFACE to examine an issue that had been engaging the United Nations for so many years, it was in the hope that we could produce new evidence of the extent to which South Africa was betraying its obligations, clarify for public opinion everywhere but especially in the West the implications of failure by the world community to end this betrayal, and accordingly provoke pressure, by governments and on governments, for urgent and collective intervention. We planned to follow the design of the Sanctions Conference, inviting experts to prepare papers on the main aspects of the issue, and dividing the conference itself, with its preponderance of political delegates, into special commissions, which would examine rather than declaim, and together produce, we hoped, a closely reasoned case for international action. The commissioning of the expert papers, however, proved far more difficult than we had, from our work for the Sanctions Conference, supposed. It is an intrinsic need of South African rule to hide as much of South West Africa as possible from outside eyes. The South African government has taken, for instance, to merging trade figures for the territory with South Africa's own, so that a significant and up-to-date assessment of the South West African economy had to be painstakingly elicited from a multitude of different, and often not easily accessible, sources. There were few economists, historians and military strategists who had concerned themselves, we found, with a territory so remote and securely guarded from the traffic of events. In the end, therefore, not the least important achievement of the conference - and one largely due to the efforts of Ruth First - was the production of papers which entailed much original research and which must add much to public knowledge of the territory. The four-day International Conference on South West Africa was held at Oxford in March 1966: its patrons were the Prime Ministers of , , and Trinidad and Tobago, and the Presidents of , Senegal, , and ; its Chairman was Olof Palme, 's Minister of Communications; and the cost, like that of the Sanctions Conference, was met by contributions from sympathetic, in the main African, governments. Delegates and observers from more than thirty countries, including the United States and the Soviet Union, attended, many of them selected by their governments, parties or trade union federations for their particular knowledge of some aspect to be considered at the conference. (The Soviet Union sent as her principal delegate a former

PREFACE judge of the International Court). The findings and recommendations of the four special commissions were unanimously adopted by the closing plenary session of the conference and were than dispatched, with the expert papers, to all governments and to the United Nations, where they have played a not insignificant part in recent debates and decisions. This book - with the exception of a postcript on the judgement of the International Court - is just an official record, the evidence presented to the conference and the conclusions which the conference drew. The conference itself was held some four months before the International Court delivered its judgement, and though the case before the Court was never far from the deliberations of the delegates, as offering a formal prod to intervention, all agreed that South West Africa presented primarily a political, not a legal, challenge. And this the Court, by the very irrelevance of its ruling, its decision after so much time and expense - effectively not to decide, has only confirmed. The basic issues at stake remain what they were. And they need restating, again and again, till they stir at last an adequate response from humanity. South West Africa was handed over by the international comunity, through the , to South Africa, for temporary keeping as a 'sacred trust of civilization'. That trust has been i persistently and deliberately dishonoured by a policy of race domination. South Africa has ignored all appeals and dismissed all protests from the international community in the shape of the United Nations. Her retention of South West Africa is the sacrifice of half a million people to the cynicism of power; it derides the intentions of the Charter, mocks the pretensions of the United Nations to authority and purpose, and denounces the civilization that can so lightly regard its sacred trust. There has never been an international responsibility so clearly and widely acknowledged, and so flagrantly, so contemptuously defied. It is arguable that a civilization which can accommodate itself to such a betrayal of its own long and still solemnly proclaimed obligation does not deserve to survive. It is only too probable that a civilization which can do so, will not survive. For why has the United Nations so far failed to act, forcing South Africa to release its hold and allowing the inhabitants of South West Africa their right to self-determination? Because there are those who trade profitably with South Africa and fear the effects of intervention;

PREFACE because there are those who trumpet the need for an international authority with its own power to act, but fear that power of such scope as to be used successfully against South Africa would endanger their own licence to pursue their own interests. The lesson is nowhere lost. If a country the size and strength of South Africa can safely flout all semblance of international morality and authority, why should countries larger and stronger than she bother to behave any differently? That way leads from the trenches of Flanders and the ovens at Belsen to the atomic Armaggedon. Perhaps nothing will persuade countries like Britain, France and the United States to accept their individual and collective responsibility to the people of South West Africa and so to civilization itself. But the failure and the fault must at least be written unmistakeably into the record. There has been delay and delusion enough. South Africa should be formally stripped of its mandate by the United Nations General Assembly, and the Security Council requested to ensure, within a short period, South Africa's withdrawal from the territory. If the Security Council refuses to do so, because some of its permanent members will not permit it, then let South West Africa be openly left to its own bleeding, and let there be an end to the pretences. The world will be much better off without the hypocrisy; it merely adds insult to injury. Humanity could do worse than find out that the clothes it is supposed to be wearing are not really there. In the recognition of its need, it may resolve at last to get some. RONALD SEGAL CONVENOR, INTERNATIONAL CONFERENCE ON SOUTH WEST AFRICA. February 1967 1 Sanctions Against South Africa, Penguin Books, 1964.

South West Africa: Travesty of Trust

1. The Case for International Action by the Steering Committee of the International Conference on South West Africa '.. . South West Africa is a burning issue not only for the new African states, but for many members of the United Nations. Dr Verwoerd and Mr Louw have little use for the United Nations, but they cannot escape from the awkward questions at the United Nations and the International Court of Justice. They will, no doubt, snap their fingers alike at the legal arguments and the pleas of equity brought forward by their critics. They can be assured of one thing, however the legal decisions may go. They are damned in the eyes of all men of goodwill and all over the world for having been false to a trust. No amount of ingenious chicanery can obscure the simple basic facts about South West Africa. It was a German possession fiendishly abused. It was placed under the mandatory system of the League of Nations in order that its wretched tribesmen might be given a new deal in the light of decent world opinion. Instead of fulfilling this obligation of honour, the South African government, quibbling bare-facedly about the succession from the League to the United Nations, has swallowed South West Africa into its 13

THE CASE FOR INTERNATIONAL ACTION vile scheme of apartheid and has, adding insult to injury, taken advantage of its misdoings to strengthen its parliamentary majority. The Nationalist Party has helped itself to extra seats out of South West African voters. There is only one verdict possible in this sorry business. A mandate has been stolen and the thieves are vainly protesting their innocence . . .' London Times editorial 14 September 1960 For years South West Africa was a neglected and abandoned land: important in for a few months only as one of several remote fronts; an item in the Minutes of the League of Nations Permanent Mandates Commission from 1921 to 1939; one of a myriad of issues in the brave new post-war world of the United Nations Charter, and, though attracting more attention as Africa's asserted itself southwards, occasionally overshadowed by events in the Congo, Algeria, and currently . But this year, 1966, is crisis year for South West Africa, and for the world around it. It is the crisis of a little African country that is an international trust and yet has fallen victim to unchecked aggression by the system of race rule known as apartheid, a system which is not only universally condemned as repugnant to civilized standards of government, but is a threat to the stability of the and to the peace of the world. THE ORIGINS OF THE CRISIS The expert papers presented to this Conference detail the chapters which make up the story of South West Africa. The essence of the issue can be stated briefly: In the late nineteenth-century carve-up of Africa, South West Africa became a German possession. When, after World War I, 's former were placed under the Mandate system inaugurated by the League of Nations, South Africa became a grudging mandatory power. Always foremost in her calculations was the hope of annexing the mandated territory. Indeed, from the earliest days of her administration, South Africa's policy was directed not at furthering the interests of the African people in the mandate - whose material and moral well- being and social progress she undertook to 'promote to the utmost' in terms of the mandate provisions - but at enlarging the domination of the White minority

THE CASE FOR INTERNATIONAL ACTION in the territory, not least by the influx of South African white immigrants. South West African policy, planning and public expenditure were subordinated to the advancement of the White minority and at the expense of the neglected African population. The League of Nations was ineffective as a supervisory authority. League machinery was without power to correct abuses. It could act only by unanimous vote, and South Africa was entitled to vote on issues involving her administration. With the replacement of the League and its mandate system by that of the United Nations and trusteeship, South Africa pressed for recognition of South West Africa as an integral part of her own territory. But this claim was rejected, as had been earlier similar attempts at incorporation during the mandate years. South Africa seemed at first to accept the theory that her international obligations persisted despite the demise of the League. At the foundation of the United Nations, South Africa's representative stated: 'The Union Government will . . . regard the dissolution of the League as in no way diminishing its obligations under the Mandate, which it will continue to discharge with the full and proper appreciation of its responsibilities until such time as other arrangements are agreed upon concerning the future status of the territory . . ." But despite this declaration, South Africa alone of the mandatory powers soon made it clear that she would not enter into a trusteeship agreement for her mandate, and she refused to accept any international responsibility for South West Africa, even to the extent of rejecting the demand that she report annually on her administration to the United Nations. The plight of South West Africa was first brought to the United Nations in 1949 by Chief , acting on behalf of the , and later in concert with other chiefs. Prevented by the South African government from leaving the territory themselves, they appointed as their representative the Rev Michael Scott, who was joined in due course by South West African leaders who had been able to escape abroad. It was perhaps only the energy and determination of this lobby that prevented outright incorporation of the territory by South Africa; but the faith of South West Africans 15

THE CASE FOR INTERNATIONAL ACTION in the world body was gradually eroded by the patent unwillingness of the dominant Western powers to take decisive action. Every attempt to persuade and negotiate with South Africa proved futile and left the South African government's position unchanged. Between 1946 and 1960 more than sixty resolutions condemning South Africa's policy were passed by the General Assembly and various committees of the United Nations. In the same period three Opinions were solicited from the International Court of Justice, and these made it plain that South Africa's obligations had not lapsed with the end of the League, and that South Africa could not unilaterally control and change the status of South West Africa. With the accession of many independent African states to the United Nations and the violently repressive police actions against Africans at in South West Africa (December 1959) and Sharpeville and Langa in South Africa (March 1960) came a sharpening in international condemnation of apartheid. In 1960 a new case was prepared for the International Court of Justice by and , acting on behalf of all the independent African states. This time the judgment requested was in the form not of an Advisory Opinion but of a Compulsory Judgment. It is a case that not only must test South Africa's obligations to the organized international community in the shape of the United Nations, but must also judge the contention by the applicants that South Africa's apartheid policies as applied in South West Africa are inconsistent with the terms of the mandate trust. In the Case before the Court, South Africa has joined issue not only on the merits of her administration of South West Africa, but on the detailed doctrine and record of apartheid. SOUTH AFRICA, SOUTH WEST AFRICA AND THE UNITED NATIONS It is now twenty years since the United Nations first directed its attention to the policies of the South African government. Year after year, and by enormous majorities, it protested at doctrines and practices based on the superiority of one race over others in every sphere of life and government. South Africa's own contention, that her race policies were under her sole domestic jurisdiction and that she was accountable to no international body or current of opinion, was supported by Portugal alone among the nations of the world. South African apartheid has been condemned variously as: THE CASE FOR INTERNATIONAL ACTION 'abhorrent' . . . by Ambassador Stevenson of the United States who referred to 'the anachronistic spectacle of the government of a great people which persists in seeing the disease as the remedy, prescribing for the malady of racism the bitter toxic of apartheid .... ,2 'evil . . . and also impracticable - and will eventually lead to disaster in South Africa itself . . .'s by Sir Patrick Dean, representing the . 4a grave threat to the peaceful relations between ethnic groups in the world . . .' (the UN Commission on the Racial Situation in South Africa, reporting to the Ninth Session of the General Assembly in 1954). During his speech to the United Nations in July 1963 the Ambassador of Sierra Leone to the United Nations said '(South Africa) must be held accountable to the Security Council . . . for the unwanted, unlawful and tyrannical occupation of South West Africa . . . and (for) the serious transgression to the limits of human decency which the policy and practice of the undiluted racism otherwise known as apartheid constitutes, and which has led to the systematic attempts by means of spurious legislation to destroy all the human rights of the oppressed majority both in the Republic of South Africa and in South West Africa.' After Sharpeville the Fifteenth Session of the General Assembly added to its resolution of condemnation the request that all states should 'take such separate and collective action as is open to them in conformity with the Charter of the United Nations to bring about the abandonment of South Africa's racial policies.' The following session of the General Assembly (Resolution of 13 April 1961) called the attention of the Security Council to the South African situation as one which 'is likely to endanger international peace and security'. 1961 and 1962 at the United Nations saw the first resolutions detailing specific measures to be taken against South Africa to bring about the abandonment of apartheid. The sixteenth session of the General Assembly requested Member States to take the following measures: (a) breaking off diplomatic relations with the Government of South Africa or refraining from establishing such relations; 17

THE CASE FOR INTERNATIONAL ACTION (b) closing their ports to all vessels flying the South African flag; (c) enacting legislation prohibiting their ships from entering South African ports; (d) boycotting all South African goods and refraining from exporting goods, including all arms and ammunition to South Africa; (e) refusing land and passage facilities to all aircraft belonging to South Africa and companies registered under the laws of South Africa. (On this resolution there were 67 votes for, 16 against, and 23 abstentions.) Even while the International Court of Justice has had the South West African case under consideration at The Hague, the General Assembly has characterized the situation within South West Africa as constituting 'a serious threat to international peace and security' and went on record as recognizing the inalienable right 'of the country's indigenous inhabitants' to 'independence and to the exercise of full national sovereignty'. (General Assembly resolution of 18 December 1960.) By the end of 1961 the Assembly had called for the evacuation of all military forces in South West Africa; the repeal of all apartheid laws; the preparation of full adult elections, under United Nations supervision and control, to a legislative assembly; and assistance for preparation to eventual independence. (General Assembly Resolution 19 December 1961.) This resolution was passed by 90 votes to 1 (Portugal) with 4 abstentions. By the following year the United Nations Committee on South West Africa was recommending that South Africa be given a short time in which to comply with Assembly resolutions, after which the Mandate should be revoked, and the United Nations should assume direct administration of the territory, if necessary using collective measures at the same time to enforce South African compliance (November 1962 UN Document A/5276). The Assembly subsequently did not adopt the Committee's Recommendations in their entirety but urged the creation of some kind of United Nations presence in the territory and once again called the situation in South West Africa to the attention of the Security Council. But for all the unqualified nature of the condemnation and the far-

THE CASE FOR INTERNATIONAL ACTION reaching steps advocated by United Nations Committees and the General Assembly, within the Security Council three powers holding the veto - the United States, the United Kingdom and France - have not supported action under Chapter 7 of the Charter, which requires for Security Council enforcement measures a situation constituting 'a threat to the peace, a breach of the peace, or an act of aggression'. The demand for collective measures against South Africa for the enforcement of United Nations decisions - though reported to be feasible by the Expert Committee under the chairmanship of Mrs Alva Myrdal - has come up short against the refusal by the permanent Western members of the Security Council to concede that the policy of apartheid has created a threat to the peace. In fact the West has deliberately taken refuge behind a linguistic quibble. At its meeting in August 1963, the Security Council itself resolved that the situation in South Africa was 'seriously disturbing international peace and security' (S.3586 of 7 August 1963). Though a disturbance of the peace would appear rather more serious than a mere threat to the peace, by the wording of the Charter it is only a threat to the peace that is the prerequisite for action under Article2 (7). Condemnation of South Africa's policy of apartheid has been overwhelming. But within the United Nations, on both the South African and the South West African questions (essentially interrelated though not by any means the same issue), stalemate has now been reached. A SPECIAL INTERNATIONAL CASE It is our contention that the South West African issue is a special international crisis, requiring clear and urgent international action. The policy of race rule has grown from a provocation into an actual threat to the peace. International action has to be invoked to enforce an international obligation, which is at the very heart of the principles and existence of international commitment and organization. In sum, the case of South West Africa is critical for the people of South West Africa, the subjects of a tragically neglected and wronged mandate; is critical for all the peoples of oppressed or threatened by the regime of white supremacy; 19

THE CASE FOR INTERNATIONAL ACTION is incompatible with the South West African people's inalienable right to independence and the exercise of full national sovereignty, and remains a constant threat to the independent African states; is a testing point of international law and international responsibility; a crisis that could place in jeopardy the meaning and effectiveness of organized international authority, commitment and trust; could undermine and destroy the functioning of the United Nations. SOUTH WEST AFRICA'S PLACE IN AFRICA The sprawling but sparsely populated country of South West Africa occupies a central situation on the continent in several important respects. As the victim of apartheid expansionism, South West Africa has been treated not only geographically but also economically and politically as an extension of South Africa. Ninety per cent of the Whites in South West Africa are South African citizens who have, side by side with successive South African governments, used this territory to extend the system of white supremacy. South West Africa has thus been made into a of apartheid. The system of race rule condemned by the world community has transgressed the boundaries of its own territory and entrenched itself in a neighbouring state. Thus the African states regard apartheid - the ultimate expression of White supremacy and alien rule - not only as a denial of their continental purposiveness, as an affront to their claim to nationhood and their rightful place in the world community, but also as a standing threat to their security. British and United States investors hold a substantial interest in the seven South African mining corporations predominant in exploiting the natural resources of the country, and a controlling interest in one of them. These two powers, and others, are South Africa's major trading partners and thus a mainstay of her economic strength; and in this sense Africa regards South West Africa as a territory in whose continued role as a vassal of apartheid several world powers are involved. Examining the activities of mining and other international com- THE CASE FOR INTERNATIONAL ACTION panies with interests in South West Africa, the United Nations Special Committee on Colonialism4 wrote: '. .. foreign capital holds a dominant position in the economy of South West Africa . . . the foreign companies . . . have no interest in developing any sort of balanced economy . . . the foreign companies are concerned above all with making profits, and since these companies are owned and operated by foreigners, the surplus profits flow abroad and are not reinvested in the territory. The policy of apartheid offers the foreign companies every opportunity for the exploitation of the indigenous inhabitants. The fact that the greater part of the territory's economic production is in the hands of foreign enterprises has serious implications not only for the territory's economy but also in the political and social fields ... In the ultimate analysis it can be shown that the overwhelming majority of the mining companies belong to a complex of foreign capital which operates in many parts of Southern Africa, Northern5 and , the Congo (Leopoldville) and and in reality is directed by a number of monopolistic combines controlled by financial interests in the United Kingdom, the United States and the Republic of South Africa . . . The study of the implications of the mining activities industry and of international companies which have invested capital in South West Africa indicates that together with the Government of South Africa carrying out its reactionary policy towards South West Africa, the foreign companies having considerable capital investments in the Republic of South Africa and in South West Africa also bear responsibility for the sufferings of the people of the Territory.' The first phase of in Africa is virtually complete: alien colonial administrations have been withdrawn or expelled. The contemporary phase in the southern half of the Continent centres round the challenge to the power of entrenched white minorities by disfranchised African majorities. By the nature and extent of white settlement, the developed economies of the south and the determined racialism of the white population, the phase in the conflict which now opens will be bitter and prolonged - unless ways and means are found and used of shortening the agony. The danger is that this embattled area of southern Africa could 21

THE CASE FOR INTERNATIONAL ACTION become the scene of armed conflict on a race basis - unless some solution by negotiation or intervention can be found. It is under the banner of 'White unity' that the South African regime has martialled its forces, both in its own territory and in the mandate. Africans see themselves being left no alternative but to align themselves against whites as Whites, and the latter will find themselves trapped in a racial cul-de-sac of their own construction. The repercussions of this confrontation will shake the whole continent, and, since Asian and Latin American states are also provoked by the existence of white race rule, may reach to every part of the globe. The problem is to embark on an enforcement action to implement the decisions of the United Nations so as to lessen the chances of a shooting war in southern Africa, and to bring about the most lasting and equitable solution. , In the face of continuing South African intransigence and of the impasse at the United Nations, the incitement to one or more of the African states to act alone or together with outside states is always present, and is a risk the international community must weigh. This is a risk which international inaction will steadily increase, and which could have serious repercussions in creating new sources of conflict in the world. The unseating of apartheid power in South West Africa is thus crucial for the peace and stability of Africa and hence, because of inter- power alignments, for the world. South Africa's race policies are repugnant to her closest allies and an embarrassment to them; they could grow from an embarrassment into a danger. SOUTH AFRICAN REACTION Year after year South Africa has been insistent that her legal rights should not be invaded. Yet when the International Court of Justice handed down Opinions on the continuing need for international supervision of South West Africa, South Africa defied them. South Africa has turned her back on the majority opinion of the world assembly of the United Nations. She has refused to submit to any negotiation. The only scheme to which she has shown partiality through the years was a plan for Partition put forward for consideration in 1958 by a Good Offices Committee of the United Nations, a partition plan which would have undermined the very basis of the United Nations contention that the territory as a whole

THE CASE FOR INTERNATIONAL ACTION is international, and which would have partitioned South West Africa according to the purposes of apartheid. The plan was totally rejected by the United Nations. The Odendaal Commission, which was appointed by the South African Government to consider the development of South West Africa, has provided a detailed blueprint for the implementation of apartheid throughout the territory. It is not only a plan to preserve white political and economic dominance within a framework of cheap labour and heavily repressive laws; it also aims at fragmenting the African population, tribe from tribe, group from group, so as to make it the more manageable. South Africa is thus attempting in the 'sacred trust of civilization' not merely to arrest history, but to reverse it; while purporting to deal with tribalism in the modern world, it in fact conducts a careful programme of re-tribalization. In 1964 Dr Verwoerd, Prime Minister of South Africa, announced that the Government had dropped its plans to implement (separate tribal areas) in South West Africa until after the International Court case judgment. But while the declaration of new political divisions in the form of Bantustans is being suspended for a time, the South African Government has proceeded with other aspects of the report which, said the Political Correspondent of the Star (9 May 1964), are 'aimed at preparing the ground for the day when he (Dr Verwoerd) is ready to call a a Bantustan'. Dr Verwoerd said himself that the Government's decisions not to go ahead with the political proposals contained in the Odendaal Commission's Report was 'not a shelving for further investigation, but a spacing of decisions'. Meanwhile economic planning and expenditure, as recommended in the Odendaal Commission Report, have proceeded, and will have the effect of driving even deeper the apartheid divisions which rend the territory. Pointers to the South African Government's unwavering intransigence were given in speeches made by Cabinet Ministers at the Day of the Covenant celebrations on 16 December 1965. The Minister of Justice, Mr B. J. Vorster, said that the time had come for South Africa to impress on other nations of the world that it had 'no intention of changing its policies'. AN INTERNATIONAL POLICY ON THE SOUTH WEST AFRICA CRISIS. It is because both the words and the deeds of the South African 23

THE CASE FOR INTERNATIONAL ACTION Government show a total inability or a total unwillingness to abandon present race policies that there must be an immediate end to South Africa's administration. South Africa's administrative record since 1921 and her inflexible defiance of the world community disqualify her from any future role in the fate of South West Africa. The practice of apartheid is too intrinsic a feature of South African administration for the pattern to be broken, even if there were present - which there is not - some willingness to chart a new course. On 28 November 1961, the Representative of Mexico spoke at the 1226th meeting of the United Nations Fourth Committee: 'It could in fact be claimed that the path of persuasion has led nowhere. The increasingly negative reaction of the South African Government indicates beyond any reasonable doubt that the solution of the problem cannot be made contingent upon the voluntary observance by South Africa of the Assembly's resolutions. It is clear that there is no real or practical possibility of South African complying with the terms of the mandate.' The Representative of Mexico continued that it was impossible to secure the political, economic and social advancement of the people of the territory or their development towards self-government or independence with the voluntary co- operation of South Africa. In other words it was impossible to achieve this aim so long as the territory had its present legal status, under which its administration was entrusted to South Africa. The catalogue of how South Africa has not only evaded the positive requirements of the supervisory mandatory authority in terms of advancing the best interests and the progress of the people of the territory, but further, of her defiance of requirements of the mandate, has grown over the years, The violation of the mandate, numerous and flagrant, are well documented in the case submitted to the International Court. Some may be mentioned: South Africa has refused to report on the progress of the territory. She has incorporated the administration of 'Bantu' affairs as part of her own 'Bantu' affairs department in . She has placed White South West African voters on the South African electoral roll and given White South West Africans seats in the South African Parliament in order to swell the parliamentary majority of the governing party. Trade and other statistics have been incorporated with those of

THE CASE FOR INTERNATIONAL ACTION South Africa, and the mandate's economic activities have been treated as an extension of South Africa's. South West Africa has been and is being treated and administered as virtually a fifth province of the Republic. The first requirement thus, for a realistic international policy for South West Africa, is that South Africa's control over the territory should be terminated. INTERREGNUM FOR SOUTH WEST AFRICA Once this has been done, what next? The views of the South West African organizations themselves will be found in the Appendix to this paper. It is vital that in constructing machinery for governing the territory, there should be the fullest consultation with the South West African political organizations which have spearheaded the political and other demands of the African majority. There must be the earliest possible return to the territory of all the exiled leaders so that the full functioning of the political organizations can commence, and the new directions must be based on the needs and wishes of the African majority. What are the wishes of the people of South West Africa over the character of the period between the cessation of the South African administration and the accession of South West Africa to full independence, granted that, given the will, the United Nations, with the backing of great and small powers, will evict the South African government? Organizations and individuals who are the spokesmen of the African people of South West Africa have, for a number of years, presented evidence to the United Nations on this question. The representations have not been identical but they have in common the policy that the United Nations should 'hold the ring' until free elections can be held and a basis laid for African majority government. Concern has been expressed about what will happen when South African government control has been removed from the territory. The full and free functioning of the political organizations of the territory are the soundest insurance against political instability. It is also argued by some that the South West African organizations and people are not fit to govern themselves. About which African country approaching independence has this not been said? About which country under foreign rule has this not been offered

THE CASE FOR INTERNATIONAL ACTION as an excuse by the rulers to retain their rule? How does a people learn to exercise responsibility except by exercising it? Is it reasonably conceivable that a further period of South African administration would better equip the people of South West Africa for selfgovernment? Dangerous instability is inherent in the present situation. Every day that passes in a Southern Africa where South Africa, Angola, and Rhodesia repress the aspirations of the majority of the people creates a potentially more explosive situation. This is a repressive situation which it is impossible to perpetuate, and the sooner that the African people are given an outlet in government, the less must the possibility be that change will be unsettling. THE FEASIBILITY OF INTERVENTION No one can reasonably suppose that, if the Security Council resolved to compel the extraction of South West Africa from South African control, it would lack the necessary means to do so. Obviously the world community has the resources to engage in military operations which would rapidly bring the South African government to retreat or surrender. For those who have opposed economic sanctions in the past as too protracted and finally expensive an operation, the alternative of military intervention offers the prospect of both cheaper and swifter success in prising South West Africa free from South African control. (South Africa herself, it cannot be too often repeated, is militarily strong only by continental standards, and could not withstand the assault of a single great power, let alone the combined forces at the disposal of the Security Council. Certainly, military intervention has been employed unilaterally on many occasions in the past few years by individual members of the Security Council in response to situations nowhere near as universally condemned as that prevailing in the international trust territory of South West Africa.) The 1964 International Conference on Economic Sanctions against South Africa held in London to consider methods of compelling an end to the policy of race rule in South Africa found South Africa in 'a state of race war'; declared that the South African situation constituted 'a threat to world peace within the meaning of Article 39' of the United Nations Charter; found that a policy of total economic sanctions against South Africa is 'feasible and practical and can be

THE CASE FOR INTERNATIONAL ACTION effective'; and recommended that the provisions of Chapter VII be invoked for mandatory sanctions. The legal expert whose opinion was sought by the Conference, Professor D. H. N. Johnson, of London University, found that the 'difficulty about taking (economic measures of enforcement) is likely to be political rather than legal'. The United Nations has, in other words, the legal authority to take enforcement measures over the domestic policy of the South African government; how much more easily, then, has it the legal and moral obligation to take enforcement measures over South West Africa. The findings of the Sanctions Conference were presented to the United Nations, and the Security Council appointed an Expert Committee of its members to consider the feasibility of economic sanctions against South Africa. The principal obstacles were seen as the harm that sanctions might do to Britain's own balance of payments, and the probable need for a full naval blockade, estimated to cost between £75 million and £130 million a year. What, it may be asked, is the cost of unilateral military interventions by the great powers in the United Nations? And, what ceiling on expense can any operation to fulfil an international responsibility and preserve international peace properly have? Such costs must be weighed against the costs of still further inaction. 'The difficulty . . . is likely to be political rather than legal.' The harsh fact is that South Africa's important trading partners, especially Britain, have the power to prevent the Security Council from taking the necessary enforcement measures. And this political decision, of expediency rather than principle, has become dramatically plain since the decision by these very same trading partners to use economic sanctions against the rebel regime in Rhodesia. The previous arguments, never particularly persuasive, against sanctions in principle - as inherently impractical, unlikely to be effective, and indiscriminate in their devastation - have been discarded in order to avoid employing the alternative of military intervention. Now we are told, by Britain and the United States, that economic sanctions can work, given time, and that, indeed, their efficiency has already been established. An oil embargo, claimed as difficult, if not impossible, to mount against South Africa, has been mounted against Rhodesia, and the beginnings of a naval blockade are evident in the patrolling of the Mozambique coast by British ships, if only yet as an apparent check on oil tanker traffic. The lessons of the economic assault on Rhodesia so far suggest 27

THE CASE FOR INTERNATIONAL ACTION that a campaign of sanctions against South Africa would, in an important sense, be less and not more difficult to operate. It is South Africa in the main that is blunting the edge of sanctions against Rhodesia, by providing oil and petrol, supplying necessary imports and a sustaining market for products, allowing credit and so bolstering the currency of the beleaguered economy. Were sanctions to be directed against South Africa itself, there would be no neighbour rich and powerful enough to afford significant help against concerted pressure from the rest of the world. The opposition to sanctions against South Africa over South West, therefore, apparently reduces itself to a simple political refusal by the major powers of the West to countenance enforcement measures, lest the government of white supremacy be replaced by a regime perhaps more just and rational, but less accommodating to the requirements of private investment and Western strategy. White control of Southern Africa may not be admirable, may even be sporadically embarrassing in its predatory effects, but at least it is stable, a dependable defence against disorder and the unpredictable possibilities of change. It is here that we believe the West most dangerously miscalculates. White supremacy in Southern Africa is itself a major source of instability throughout the continent and of mounting racial hatreds everywhere. It provides present stability in Southern Africa perhaps, but only at the cost of much greater instability in Southern Africa, as elsewhere, for the future. Every day that the world fails to intervene, racial attitudes harden, and the achievement of Western policy in the end may well be the exact opposite of its purpose - the expulsion of all whites from Southern Africa, even the whole continent, and the deep division of humanity along colour lines. TIME IS THE ESSENCE The inability of the United Nations to handle the South West African crisis could destroy the world body as an effective political instrument. The United Nations cannot pass the same resolutions year after year, and continue year after year to be paralysed by inaction. If measures against the South African government cannot be initiated from the United Nations, other initiatives must and will be found. The reaction of the people of South West Africa, of all Africa, to continuing international procrastination is becoming increasingly 28

THE CASE FOR INTERNATIONAL ACTION embittered. Reserves of constructive energy are being drained by years of futility and scepticism about the intentions of world opinion, which professes an international morality and advanced standards of government, yet allows itself to be bullied and rendered ineffective by a relatively small state that makes isolationism and retrogression the hallmarks of its society. South West Africa stands to lose material wealth and possibilities for development every year that a solution to the crisis is delayed. South West Africa's mining assets are the key to her future, and these economic assets are not accumulating but diminishing. (It is estimated that diamond resources will last another twelve, and copper another twenty to twenty-five years.) Without international intervention, South Africa will exploit the wealth of the territory until the assets that were to be used for the subjects of a trust are exhausted. It is vital to appreciate that apartheid, left to entrench itself, will in time become more and more difficult to reverse. The Odendaal Commission, for instance, contemplates massive movement of population to fit into the Bantustan concept. Every new regulation passed by the administration or new law on the statute book builds stronger apartheid barriers and makes more irrational the use of the country's human and economic resources. The stronger the apartheid pattern is welded, the tighter the grip that the apartheid state fastens on all Southern Africa, where it has installed itself as a garrison against African development. Time is of the essence. APPENDIX Before 1959 the view of the Chief's Council (advising Chief Hosea Kutako) was that South West Africa should be administered by an authority deriving its power from the United Nations. It was preferred that three Powers should be entrusted with the Administration of the territory, and that in the appointment of these, the following considerations were to be taken into account: (1) the ability to maintain the country economically; (2) the ability to represent a cross-section of UN opinion; 29

THE CASE FOR INTERNATIONAL ACTION (3) the willingness to accommodate African nationalism. At that time, on the basis of the world balance of power and the composition of the United Nations, the following countries were mentioned: (a) Ghana - representing African opinion in the UN. (b) Yugoslavia - representing Socialist opinion in the UN. (c) United States - as the leading and most stable economic power in the UN. The task and most important objective of this authority was to prepare the country and the people for self-government and independence, after which it was to withdraw. Deputy Herero Chief Clement Kapuuo (speaking as president of NUDO, an organization of the Chief's Council) declared that after the termination of the South African Administration, the United Nations should appoint an administrative authority, under the trusteeship system, for a period of eighteen months, after which the country should become independent. The South West African National Union (SWANU) meeting at Accra in 1962, declared: Political problems, problems of administration, problems of security, problems of development and of technical knowhow would have to be decided upon by a representative Convention of the People of South West Africa. This means that the UN would have to provide the interim machinery for administration and for the maintenance of peace and security. In the meantime, the UN, in consultation with the present leaders of organized opinion, would arrange in South West Africa for the convocation of a representative Convention of the People of South West Africa. The Convention would consider and decide upon the following: (a) Political arrangements in the country, i.e. the constitution. (b) Administration problems relating to the manning of the

THE CASE FOR INTERNATIONAL ACTION administration, i.e. at a technical level, before complete (i.e. South West Africanization) can be successfully effected. Amongst other things, the question of those supporting the South African Government and who desired to remain in the country afterwards would have to be considered. (c) Maintenance of peace and security in the territory: the problem of a police force, before South West Africa could be in a position to establish its own competent and loyal police force. (d) Technical development and external assistance: The principles of how the resources in the country could best be exploited; how the desired wealth could best reach all the people; and how the people could best take part in the development of the country. The principles to govern the acceptance of aid from external sources, e.g. from individual countries and from the UN and its specialized agencies. (e) The Convention might consider the necessity of a UN Committee composed of African States to advise the Government and Administration of the Territory. The South West African People's Organization (SWAPO) in 1962 called for: (a) Termination of the South African administration and the immediate withdrawal of all its military forces present in South West Africa; (b) free general elections within a period of six months on the basis of direct universal adult suffrage, under United Nations supervision; (c) the establishment of complete internal self-government; (d) the abolition of all and pass laws; (e) the achievement of national independence, after a short period of interim government with United Nations Commission support in an advisory capacity. 31

THE CASE FOR INTERNATIONAL ACTION In order to strengthen the work of the United Nations Commission, there should be a UN Police Force to restore a climate of peace and security; maintain law and order, and protect the lives of all inhabitants; protect and assist the UN Commissioners in the carrying out of their duties; disarm all South African military and para-military personnel and arrange for their immediate repatriation to South Africa; abolish all South African military bases in South West Africa; disarm all organized and individual civilian elements engaged in the terrorization of African people; free all political detainees and imprisoned leaders. Military personnel for the proposed UN Police Force was to be drawn from all member states except from Great Britain, and the Great Powers should be asked to provide material supplies to ensure the strength and effectiveness of the Force. In 1965 the President of SWAPO, Mr , told the Fourth Committee: 'Mr Chairman, the people of will not accept any change other than complete independence now. 'Therefore we would like to propose the following transitional plan: (a) . . . the United Nations should make it possible, after the decision of the International Court of Justice which I believe will be in our favour, for the safe return of all exiled political leaders and the release of all political detainees in the country. (b) Terminate the mandate for South West Africa immediately and entrust the temporary administration of the country to a United Nations Commission composed of African states with a view to arranging for free general elections based on ONE MAN ONE voTE throughout the territory irrespective of race, colour, religion and place of origin. (c) Establish a United Nations Police Force to facilitate the work of the Administrative Commission of African states; to protect the lives of all the inhabitants of the country; to disarm all South African military and para- military personnel and to arrange for their immediate repatriation to South Africa: and to assist in the restoration of peace and security, and the maintenance of law and order.'

I League of Nations. Records of the 21st Ordinary Session of the Assembly (Geneva 1946). 2 Security Council Debate, 2 August 1963. 3 Security Council Debate, 2 August 1963. 4 Implications of the Activities of the Mining Industry and Other International Companies Having Investments in South West Africa, UN, A/5840 5 January 1965. 5 Now Zambia. 33

2. Genesis: From Conquest to Mandate German South West Africa after the Conquest 1904-19141 by Helmut Bley, History Department, University of The events and consequences of the war (1904-1907) waged by the Herero and the Nama against the Germans during the period of German sovereignty in South West Africa were destined to have farreaching repercussions on the social structure of the territory. Since the purpose of this report is to provide a sketch of the historical background to this period it would seem advisable to concentrate above all on the social and psychological consequences of this war, for these throw far more light on the history of the territory than do the details of the German administration, which came to an end in 1914. The first question we must ask ourselves is why this war and the reorganization of the territory which followed it should have had such radical consequences. But let us first examine these consequences: THE CONSEQUENCES OF THE WAR OF 1904-1907 The war began in the early days of January 1904. Whilst the greater

GENESIS: FROM CONQUEST TO MANDATE part of the German Colonial Force was tied down by a local riot in the south, the Herero rose and engaged in a course of general pillage and killing in which over 100 settlers and soldiers lost their lives. The Germans retaliated by mounting a full-scale war, in which over 70% of the Herero and probably an even greater percentage of the Nama, who joined the rising in October 1904, were annihilated. (Of the original Herero population, estimated at 60,000, some 16,000 survived the war.) A small number of the Herero under the leadership of their chief, Samuel , succeeded in escaping to Bechuanaland.2 Virtually all of the Herero cattle perished. Up to 1908 several thousand Africans were detained in prison camps. The mortality rate in these camps was high, especially in those situated on the Atlantic coast, where the damp climate took a heavy toll of life.3 Twenty-five per cent of the Herero and Nama were deported to parts of the country lying outside their own tribal territory.4 The sexual exploitation of the women in the camps reached catastrophic proportions. Syphilis was so widespread that the birth-rate virtually came to a standstill.5 The change of diet from milk-based foods to corn produced nutritive problems. Infant mortality was high. Between 1906 and 1907 the system of native decrees was introduced. Its chief architect was Governor von Lindequist. 7 The tribes who had taken part in the uprising were dispossessed of all their land, which was confiscated by the state and subsequently sold to settlers. The territories held by the of , parts of the territory of the Bondelswart Nama, parts of the territory of the Bergdama of Okombahe and the territory of the Ovambo, which last was not yet under German control, remained unaffected by these decrees.8 Other tribal organizations were dissolved. All forms of chieftainship were proscribed and a number of headmen were executed on the grounds that they were responsible for the uprising. The holy fires remained extinguished. The wearing of tribal insignia was forbidden.9 Herero and Nama were no longer permitted to rear cattle.10 The integration of the individual members of the African tribes into the European labour market, a policy which was consciously pursued by the German authorities, was successfully carried out. Ninety per cent of all African men became the hired workers of European masters. By 1912 only 200 men of the Herero and Nama tribes were without paid employment." The law of the territory differentiated at every level between

GERMAN SOUTH WEST AFRICA native and non-native citizens. Mixed marriages were forbidden and this provision applied to civil and church ceremonies alike.12 The disintegration of the Herero and Nama was absolute. The social anthropologist, Wagner, has shown that, following this catastrophe, the social structure of the Herero tribe was shattered and their traditional customs and standards were rendered largely inoperative. What had once been a people was now no more than a collection of scattered and unrelated persons, all deeply insecure and disoriented, who would only very gradually come to seek a new centre of integration. The overall picture is one of itinerant workers moving from farm to farm, off into the bush, to the building sites and the mass settlements of the townships. Although the natives had been integrated into the European labour market, they were not socially integrated under the new system. But had the Germans intended right from the outset to bring about such a state of affairs? GERMAN OBJECTIVES IN SOUTH WEST AFRICA BEFORE 190413 It may be stated quite categorically that neither the German authorities in South West Africa nor the settlers had intended to wage such a total war. The war simply burst its banks and found its own level. Governor Leutwein, who held office from 1894 to 1905 had warned his own people time and again that in their relations with the natives they were not to let matters come to a head, because he wished to avoid the economic and social consequences of a war between the Germans and the Herero. The policy pursued by the Colonial Department and by the Governor was a policy of 'bloodless conquest'. They calculated that the industry displayed by the white settlers and the new consumer habits which they had introduced into the territory would in themselves have such a corrupting effect that both the economic and the political function of the tribal structure would be undermined and that consequently individual 'simple natives' would drift away from their tribes and become hired workers. The headmen and chiefs were expected to accept the new situation and to withdraw with the remainder of their tribe into a smaller tribal territory. It was always intended that some form of autonomous African social structure, to which the individual African worker could return, should be preserved. This is evident from the plans developed in 1903 for the setting up of reserves, in which it was 37

GENESIS: FROM CONQUEST TO MANDATE stipulated that a certain nucleus of each tribal territory was to be excluded from any land transactions. From time to time both the settlers in the larger townships of South West Africa and the Colonial Department in Berlin had expressed themselves to the effect that the tribes, who were equipped with modern rifles should be forcibly disarmed. To break the military power of the tribes and in order to protect individual settlers living in tribal territory the Governor had always effectively opposed plans of this kind. - Just twelve weeks before the outbreak of war in 1904 the settlers were by and large of the opinion that it would be possible to bring about a change in the 'Black-White relationship' without a largescale military engagement, provided they proceeded 'without false sentimentality' and with 'all due rigour'.14 But the strongest proof that the Germans did not envisage a largescale conflict is to be found in the fact that both the settlers in the tribal territory and the Governor himself were taken completely unawares by the Herero decision to revolt. Until then it had been considered that the Herero would never take the initiative in the field. The Germans had come to this conclusion because the Herero, whom they had been observing since 1896, had appeared to be quite lethargic. But this lethargy, which the Germans had taken for an intrinsic quality was in fact a recent phenomenon. Various things had happened. The right of succession to the chieftainship of the tribe had been decided by force of arms, the greater part of the Herero cattle had been destroyed by rinderpest, the Germans had advanced into Herero territory. These factors had combined to produce a cultural crisis in the tribe which had revealed signs of lethargy and resignation. Because more and more individual Africans were entering into the farming and building industries and because relations between the top German officials and the chiefs and head-men of the tribes had always been entirely friendly, the Germans failed to realize the strength of the social bonds which existed even in such loose-knit tribal structures as those of the Herero and the Nama. It is an established fact that no African divulged the plans for the uprising. But the German settlers found this so incredible that they bitterly accused the Rhenish missionaries of having had knowledge of the plans and hated them from that day on. Until then, although the tribal structure had certainly been taken seriously in terms of its

GERMAN SOUTH WEST AFRICA fighting potential, its social function had been a closed book. And so when the war was over the settlers were quite helpless in the face of the social chaos which had been created, for they neither wished to renew the tribe nor were they able to replace it. But before we go on to discuss this problem we must first briefly state the reasons which prompted the Herero to take a military initiative. THE CAUSES OF THE UPRISING IN 1904 As far as it is possible to ascertain from the few available sources of information, the underlying causes of the uprising would seem to have been extremely complex. It is highly probable, however, that the chief factor was the fear that the loss of native land to the Europeans, which was precipitated by the pernicious innovation of credit trading, was approaching the critical limit when the survival of the cattle herd would be endangered. It could no doubt be argued that, if the natives had employed the rational farming methods evolved by European cattle breeders, there would have been no shortage of native land at that juncture. But the fact remains that from the native point of view the number of cattle owned by the tribe constituted the basis of the ancestor cult and consequently of the whole system of chieftainship. The implications of the threat to the ritual and social function of the head-men of the tribe, a function which had already been undermined by the actions of the German authorities, were not understood by the younger generation. They lacked the political realism of their elders. The immediate causes underlying the uprising were: social discrimination, which had become particularly evident since the building of the railway; the lack of impartiality in the courts, where, according to Governor Leutwein, 'racial justice' was administered by the white assessors; abuses in the system of credit trading, and finally, the removal of the Colonial Force to the distant Bondelswart territory. Taken all in all the uprising represented an attempt on the part of the head-men and the chiefs of the tribe to reassert their authority. THE STRATEGY OF EXTERMINATION PURSUED BY THE MILITARY15 When it became apparent in the course of the war that the chiefs 39 J1

GENESIS: FROM CONQUEST TO MANDATE constituted the real nucleus of resistance and when, to everyone's surprise, Samuel Maherero, who until then had been a dependent and self-indulgent figure, came to play a leading part in the struggle, the settlers were determined to dissolve the tribe by force of arms. When Governor Leutwein tried to negotiate a settlement with the chiefs the settlers retaliated by successfully intervening in Berlin. Kaiser Wilhelm withdrew the Governor's authority to conduct peace negotiations. And so it was that in the spring of 1904 the settlers and the Colonial Department lost control over the course of the war in South West Africa. Wilhelm II and the German General Staff under Graf von Schlieffen regarded the 'uprising' as the first 'war' since 1871 and dealt with it as a purely military matter. General von Trotha, who had the backing of the General Staff, was appointed Commander-in-Chief of the Colonial Force and set up a military dictatorship in South West Africa.'6 Von Trotha had already suppressed the Wahehe uprising and had been involved with the Boxer rising as General Officer in Command of a Brigade. Not only did he conduct the campaign against the Herero in accordance with the strategic principles of a war of extermination, he also subscribed to the view that what was happening in South West Africa was the first stage of a great racial war. He introduced his 'colonial policy of the sword' and with his 'strategy of extermination', which was to acquire a certain sad notoriety, he set about the systematic extinction of the whole of the Herero tribe, an undertaking which proved 70% successful. In the last phase of this campaign the Colonial Force drove the remaining Herero into the Omaheke desert, and waited for them to die of thirst. Von Trotha wrote to von Schlieffen to explain his methods: 'I believe that this nation must be destroyed as a nation . . . This uprising is no less than the first stage of a racial war . . .' Von Schlieffen, the Head of the German General Staff, agreed with him: 'He wants to exterminate the whole nation ordrive it out of the territory. In this we can only agree with him. After what has happened it will be very difficult for Blacks and Whites to live together, unless the former are kept in a condition of forced labour, i.e. in some sort of slavery. Once racial war has broken out it can only finish with the annihilation of one of the parties . . .,11 Although it happened almost too late for the Herero, Reichskanzler von Billow, under the influence of the Rhenish Mission, the

GERMAN SOUTH WEST AFRICA German Reichstag and public opinion both at home and abroad, opposed this policy of extermination. Von Biilow won the Kaiser over, forced von Schlieffen to change his line and relieved von Trotha of his Command in November 1905. The Reichskanzler declared that the General's proclamations 'violated every principle of Christian and human conduct . . .' 'To exterminate the whole of the Herero race according to an organized plan of campaign' would be 'a punishment far in excess of all that is reasonable.' " THE WAR AND THE SOCIAL AIMS OF THE SETTLERS All along the settlers had found themselves in a dilemma which was to influence their social attitudes. First there had been the strategy of extermination pursued by von Trotha. Then there had been the assurances of protection from the Reichskanzler, who had accepted the good offices of the Rhenish Mission to negotiate the Herero surrender and who had also authorized the Mission to supervise the setting up and running of central camps. Although they sympathized with von Trotha's radical outlook and entirely agreed with von Schlieffen that co-existence between Black and White might well have been put beyond the pale, the settlers were obliged to rationalize their attitudes both towards the war and towards the Africans. The great majority of the settlers' farms had also been destroyed and in the fighting areas they too had lost their livestock. In virtually every part of the territory normal agricultural life had been disruped for a considerable period of time. As a result the German farmers found themselves threatened by economic crisis throughout the entire course of the war. And if the agricultural economy was to be built up again, then the guerrilla warfare had to stop. Von Trotha's strategy destroyed both the agricultural workers and the livestock. The Germans in South West Africa were investing considerable capital in order to build up large farms for intensive stockbreeding. But it was not only for economic reasons that they wished to 'master' the Africans. Social reasons also played their part. The German farmers were not prepared to run all-white farms, i.e. farms on which no Africans would be employed. This would scarcely have been feasible in any case in view of the extensive nature of German stock-breeding. But in this respect it is interesting to note that the German settlers tended to refer to South West Africa not so 41

GENESIS: FROM CONQUEST TO MANDATE much as the 'white man's land' but as the 'white masters' land'. For the above reasons they were opposed to von Trotha's military dictatorship. But although their opposition was based on the purely practical consideration of ensuring their future supply of African labour they could not prevent themselves from being lumped together with those who demanded protection from the natives on Christian and humanitarian grounds. The settlers interpreted the policy pursued by the Reichskanzler, the Reichstag and the Mission as the first stage of a development which might well lead to the establishment of an independent African social structure. This they passionately opposed. In the period between 1905 and 1907, when all these matters were being threshed out and the native decrees were in course of preparation, the settlers' true motive, the motive which had prompted them to go to South West Africa in the first place, was clearly revealed as an absolute desire for social supremacy.19 Although there was a majority in the German Reichstag in favour of allowing the Herero their own tribal territory and their own herds of cattle and although the Mission was prepared to back such a move by using the land given to it by the chiefs in order to set up mission farms for Africans, Governor von Lindequist and Golinelli, the official in the German Colonial Office with special responsibility for South West Africa, thwarted these attempts by raising legal objections.20 It is quite evident from the proceedings of the Government Committees of 1906 and 1908 that the native decrees were supported by both the Government and the settlers. The missions were forced to yield. They were not allowed to concentrate the Africans in missionary stations and instead were obliged to pursue their missionary work on an itinerant basis. The President of the Rhenish Mission in South West Africa capitulated by conceding that the decrees were a 'strict but a good regimen'. THE DILEMMA POSED BY SOCIAL CHAOS It is all the more striking and, in terms of social attitudes, all the more revealing when we find that despite this clear-cut political decision the settlers still found it necessary to go on justifying both the native decrees and the consequences to which they gave rise. In the particular form taken by the process of self- justification what

GERMAN SOUTH WEST AFRICA happened was that the settlers constantly reasserted their desire for social supremacy. This was also partly due to the fact that the social chaos in which the Africans now lived (instead of living on their separate tribal territories, they now intermingled in all parts of the Colony) had posed problems of authority with which the settlers had been unable to cope. They had fondly believed that once African political and military strength had been broken, a new colonial structure would automatically appear. This proved not to be the case. There was no new social structure and the settlers found that the subjugation of their African workers was virtually one of their daily tasks, which they were obliged to carry out in the midst of social unrest. Their decision to subjugate the African was of course only strengthened by the talk of 'protection' and 'humanity' and '' which was current immediately after the war and which even have been heard during the war. The settlers became more radical. They embarked on a political crusade. First they opposed the influence brought to bear by the missionaries, of whom Farmer Erdmann said that 'with their undigested and confused notions of equality and human dignity, . . .they were '... a source of constant danger to the people who lived in their midst.'2' The only thing that mattered, he said, was 'to keep black society under control'. In a written reply to one of the Rhenish missionaries Farmer Schlettwein spelt out the settlers' claim to a position of social supremacy: 'No, Herr Irle, what we insist upon is that the Herero should adapt to the ideas put forward by the dominant party in this territory and that he should construct an attitude of mind for himself from those ideas.'22 Paul Rohrbach, the wellknown publisher, was a Colonial Settlement Commissioner and subsequently a War Damage Commissioner in South West Africa, where he became a spokesman for the whole community of settlers. In 1907 he wrote that the task with which they were confronted was to ensure that 'as far as was possible (the Herero) should be stripped of his national identity and his national characteristics and gradually amalgamated with the other natives into a single coloured working class . . .'3 The continuity of this kind of attitude is indicated by the fact that in 1911 Farmer Konrad Rust was making the same sort of statement in a lecture: 'As I have already said, the legal measures must reflect the prevailing conditions, the cultural disposition, the 43

GENESIS: FROM CONQUEST TO MANDATE ideas and the degree of loyalty (of the natives) and in so far as all this is realized and comes to have a beneficial effect on our colonial venture, the time will also come for our natives, when it will be possible for us to allow them to order their own affairs as a working class.24 In the experience of this farmer it is quite clearly a very difficult matter indeed to transform military subjugation into social adaptation. The difficulty of the farmer's own position is also apparent. For if the farmer says that the native must construct a new attitude of mind, whilst at the same time refusing to allow him to control his own affairs, and if the farmer also wants to know what the native is thinking and whether he is loyal to his white master, then it is, I think, legitimate to say that the farmer is attempting totalitarian control over every facet of the native's being. And, of course, the farmer will also know that this attempt is bound to fail. It is these aspects of the relationship between Blacks and Whites which so poisoned the atmosphere in South West Africa. How to integrate the Africans into the pattern of work in the territory without the use of force was a problem which concerned the farmers more than any other section of the white community, a problem, moreover, which left them virtually helpless. Because of the widespread shortage of labour the Africans were able to wander at will throughout the entire territory. They would leave their farm and wander off into the bush, where they might perhaps be picked up by a military patrol, whereupon they would accept temporary work in one of the townships and then, evading the pass laws and perhaps changing their name, they would find a new job on some other farm. Many set out to find their families and relations and some took a chance and tried to flee the country, heading for the South African gold mines, where Samuel Maharero, the chief of the Herero tribe, was at one time recruiting officer for African workers. This fluctuation in the African labour force was paralleled by a similar fluctuation in the economic affairs of the European employers. Farms were abandoned, tenancies changed hands. With the building of the railways and the discovery of diamonds the centres of economic power shifted. Because of this dual fluctuation the white settlers were unable to assert their absolute authority over the native population and so the social stability which they had hoped to establish by this means was not in fact achieved.

GERMAN SOUTH WEST AFRICA THE FEAR OF A SEPARATE AFRICAN SOCIAL STRUCTURE The Germans were coming more and more to the conclusion that they would never succeed in creating an unorganized African 'working class' unless it had its own social centre. From 1909 onwards it had become increasingly apparent that the Africans were not living in their 'white masters' land'. They were still living in the Herero and Nama territories. It is perfectly true that their farms and townships were occupied by Europeans and that these Europeans took good care to ensure that no African organizations came into being. But for all that, the Germans were well aware that the members of the dispersed African tribes, and especially the Herero, were secretly coming together again. A German official stated at the time that the Herero were leaving both the Nama areas in the South and the coastal areas and returning to the 'old Herero territory'.15 And an economist said that the farms situated on the old tribal areas possessed a 'virtual monopoly of the available labour force',26 although it was not generally known the relatives of the former headmen were living together on these farms. The Germans already knew by then that an African nation might yet emerge from these tribal remnants. From 1909 onwards, if not earlier, they indicated that the baptisms, which had been regarded more or less as the 'fashionable thing' in the immediate post-war period, were not to be considered in the light of Christian conversions but rather to be condemned as signs of incipient nationalism.27 It was at this time that Hendrik Witbooi's grandson was refused permission to work as a preacher. The view held even then was that 'if the people come together on a Sunday in the house of God in such numbers that there is scarcely room to move and if they then sing and pray in their own language' it is 'quite clear that their national consciousness' will have been aroused.28 In trying to explain the significance of the events in South West Africa to their compatriots at home the Germans tended to write in the heroic style of the old Germanic sagas. The war of 1904 was presented as a war of national independence. The chief object of all this was to stress the unbridgeable gap which separated them from the Africans. This insistence on a completely separate social status is revealed in the following description of an African tribesman by a farmer's wife: 'To this day I can still see the way that old Herero came to life

GENESIS: FROM CONQUEST TO MANDATE when he spoke of his friends, the famous chiefs . . . and if I try to feel my way into his black soul I can even find it within me to sympathize with his deadly hatred . . '30 If we study the records of the public discussion which took place in South West Africa in the Council, in the newspaper articles, in readers' letters, in the lectures given to local societies and even in the criminal courts, then the dilemma in which the settlers found themselves becomes only too apparent. They acknowledged the principle of social segregation and they conceived the social structure of the territory in terms of two antagonistic nations, both living in the one country. And on this basis of segregation they sought to establish a stable social order. THE DEFENCE OF SOCIAL 'DISTANCE' In co-operation with their Governors in the territory the German authorities at home were constantly trying to find some means of creating a social structure, which would be free from hatred and fear without sacrificing the general nature of the native decrees. It was felt that South West Africa must now return to a normal way of life. The German government wished to retain control of the social organization of the Colony in order to prevent any abuses. At the same time the settlers wished to free themselves from the moral responsibility which had been the unavoidable concomitant of the subjugation of the African. The formula put forward by Governor von Lindequist in the hope of establishing a compromise solution of this kind was to the effect that the Africans were to be treated 'with severity but with justice'. The degree of severity to be meted out to the Africans was to be decided by the State. The native decrees remained the 'legal' basis of the social structure of the territory. But in their personal exchanges with the Africans the settlers were exhorted, in the popular parlance of the day, not to behave like 'boors' or like 'black sheep'. The settlers interpreted this formula according to their own lights: 'All our actions should be informed by a healthy and a legitimate national egoism . . ., but in our dealings with individual natives we should above all follow the dictates of humanity and justice.' The settlers insisted that 'the government should act energetically and ruthlessly,' although it would be 'wrong to interpret the government's policy, which was necessitated by circumstances, in a personal sense

GERMAN SOUTH WEST AFRICA by assuming that with the pacification of the territory every coloured person was automatically obliged to obey every white person like a slave . . .31 None the less, it was the position of direct authority in which they found themselves which gave the settlers the idea that they were the masters. And it was the settlers' insistence that they be treated as masters which was to bring them into constant and violent conflict with the officials of the Colonial Administration, who claimed this right for themselves alone. THE FICTION OF 'PATRIARCHAL RULE' The slogan of 'patriarchal rule' had a dual implication. On the one hand it applied to the struggle which the settlers waged against the Administration in order to assert their rights to a position of personal power over the Africans, whilst on the other hand it represented an attempt on the part of the settlers to ameliorate the African's social position by introducing a personal element into his relations with his employer. But the social tensions proved too great for this attempt and it remained a fiction. These 'patriarchal tendencies' were most prevalent between 1911 and 1914, when discontent over the social disintegration of the Colony was growing and when the Farmers' newspaper, the Siidwestbote (South West Messenger), wrote on 28.1.1911 that 'far from improving with the passing of the years native conditions were in fact deteriorating'. The views held by the settlers on this subject are illustrated by a lecture which Farmer Rust held in 1912 before an audience of fellow-farmers on the theme of 'Protection for the Farmer'.32 Rust also took the fluctuation in the native labour force as his starting point and asked how they could best 'control this kind of farm property and direct it into a more organized way of life . . .' In dealing with the social disintegration of the Africans, Rust said: 'Gentlemen, as you know, the communal life led by the natives before the uprising was chiefly centred around community settlements. These traditional settlements made it easy for them to live a community life, for this was what they had always been used to.' But now that the Africans were faced with the detruction of their tribal society, Rust argued, they would have to finds a new centre of integration. And here he suggested the farm. On his farm the farmer should set himself up as the central figure in a new social structure, thus making it easier for the African to adapt. At the

GENESIS: FROM CONQUEST TO MANDATE same time Rust also argued that the farmer would not be able to fulfil this function on his own and would have to appoint African elders as well. He even accepted the fact that an independent African social structure was to some extent unavoidable. In one and the same breath, however, he warned his audience of the political consequences which might well result from the institution of a system of African elders. Give them an inch and they might well take a yard! For Rust the concept of an independent African authority was evidently tantamount to a revolutionary threat. And in enlarging on the dangers which the Africans represented Rust completely contradicted his own conception of the farmer as father to his people. He went on to say that it was only in his official dealings with his people that the farmer would expect to be treated with 'respect and dignity' 'Behind his back he will be no more and no less than despised and in the majority of cases detested.' Given this assessment of the African Rust was obliged to build into his vision of patriarchal rule the concept of governmental coercion. In order to ensure continuity of farm labour he demanded that the Africans should be legally required to give proper notice, that more severe penalties should be imposed on those who tried to run away and that when natives did run away the police should help the farmers to track them down. If we consider the economic organization of the farms it is difficult to see how the farmers could in any case have hoped to play a patriarchal role. A review of the economy of the farms in the Central Herero territory carried out in 1912 revealed that, in return for his labour, the native did not even receive sufficient food to support himself and his family. On 31 of the 43 farms investigated the albumen and calorie content of the food issued to native workers fell below the minimum level prescribed by contemporary dieticians. Food gathered or hunted in the bush, stolen or poisoned cattle and the offal of slaughtered animals constituted an important supplement to the African's diet. When taxed with the inadequacy of the native diet the farmers defended themselves on two grounds: their dairy products had to go to market and they had no capital resources with which to buy more nutritive foods.33 But the farmers also used the widespread fear of the natives as an additional argument: they were feeding their workers badly, lest they should get too 'high- spirited'. On the other hand there were some farmers who allowed the Herero to rear their own herds of goats. But

GERMAN SOUTH WEST AFRICA this was no solution to the social problem either, for in South West Africa the rearing of goats was a symbol of slavery. THE CRISIS OF HUMAN RELATIONS, 1911-191334 Most of the settlers' statements which we have quoted reveal the hatred which, however much it was covered up, lay at the heart of the relations between Blacks and Whites. Between 1911 and 1913 human relations in the territory were so bad that the Administration tried to intervene. The 'patriarchal' settlers had claimed the right to 'punish their children' themselves, which meant that many farms were run by the law of the whip. Although corporal punishment was officially recognized in South West Africa and was prescribed by the Judiciary, the Administration nonetheless opposed its practice by the farmers since there had been known cases of maltreatment resulting in death and intentional acts of manslaughter. The authorities tried to curb this development by prosecuting in a number of cases where the proofs were conclusive. The evidence presented in the criminal court reveals just how extensive the breakdown of human relations between farmers and native workers really was, a fact which was borne out by the farmers' own newspaper when it sought to exonerate the accused on the grounds that whipping was such a widespread practice. The farmers spoke of their right to administer their own justice and declared that they were living in a state of constant emergency. Certainly conditions of panic and anxiety were prevalent, many farmers suffered from persecution mania and went in fear of being poisoned by their own workers. Leather whips, many of them with strips of iron woven into the thong, formed part of the inventory of most farms. Only too often, farmers would use these whips as a last resource in order to counteract the insecurity instilled in them by the loneliness of their lives in the midst of an enormous country, although in cases of suspected cattle stealing they might well have recourse to their rifles instead. In extreme cases young boys, girls and even pregnant women were not spared. The press reports, the speeches of the accused and of their Counsel and the scale of the punishments fixed by the assessors in the various courts give a clear indication of the extent to which the whole settler community had identified with this state of affairs. The men who had presented the case for the prosecution in these trials were branded as 'negrophiles' and boycotted. 49

GENESIS: FROM CONQUEST TO MANDATE ATTEMPTS AT REFORM UNDERTAKEN BY THE ADMINISTRATION, 1913.a5 The Colonial Authorities successfully enforced their policy in respect of corporal punishment and in the two years immediately preceding the outbreak of the Great War the Administration in South West Africa began to face up to the requirements of social integration. This was partly due to the general attitude towards Colonial Affairs of the Secretary of State in the German Colonial Office, Solf, and partly to the change which had taken place in the economic structure of South West Africa. A more systematic labour policy had been developed in respect of the growing demand for native labour in the copper and diamond industries. Once it was apparent that workers could not be imported from other Colonies (Annual Report 1913) it became all the more important to persuade the Ovambo, who still lived within a firm tribal structure in the North of the German territory, to leave their settlements and become itinerant workers. At the same time measures were taken to combat the stagnant birth-rate in the Herero tribe. A recruiting system was also evolved, native Commissioners on the English pattern were appointed, the shortage of food in the industrial areas, especially in the diamond area, was alleviated and the trails which the itinerant workers would follow were made safe. Out of consideration for the Ovambo the authorities also tried to curb the more flagrant abuses of African rights. But the Administration had in any case by now come to realize that some form of independent African social structure was the only way of ensuring the physical and social regeneration of the Herero and the Nama on a permanent basis. The first beginnings of native reserves were set up on government farms and exceptions were made to the law proscribing native stock- breeding. However, these measures were not intended as the first step in the creation of an independent African economy. Their objective was the preservation of the labour force. The German Government did not want to change the basic structure of the territory. This is quite evident from the fact that the decision taken in 1913 to authorize the South West African Council to decide all questions relating to native affairs was not considered problematical at the time. The subjugation of the Africans as a labouring class remained the basis of German policy in South West Africa. Its

GERMAN SOUTH WEST AFRICA primary objective was to enable the German settlers to consolidate their position. This policy was determined by the agrarian structure of the colonial territory and remained unchanged even when the income from the diamond and copper industries covered the whole of the budget and only the 2,000 men of the Colonial Force continued to be financed by a direct grant from the German Treasury.36 The act of self government,37 the educational policy and the land policy were all subordinated to the primary objective of consolidating the German settlers. After the Herero war the settlers never really overcame the insecurity which had arisen as a result of the undermining of the old social structure and this despite the radical subjugation of the natives which the war had made possible, despite the economic boom of the post-war period and despite the growth of the European population from 4,000 to 15,000. Disputes over the fundamental issues occurred at regular and frequent intervals. In these disputes the settlers' desire for social supremacy made itself felt sometimes in the form of cynicism, sometimes in the form of irrational panic and often in the form of compromise formulae which served to cover up the deeper grounds of discord. It was the settlers' constant insistence on keeping themselves 'at a distance'38 from the natives, which more than anything else obliged the authorities to fall back on the system of social, economic and political controls. By 1914 the normalization towards the traditional European way of life which the settlers hoped to established, had not yet taken place. 1 The paper is based on Die koloniale Sozialstruktur in Deutsch-Siidwestafrika 1894-1914, part III Dissertation, Hamburg University 1965, by Helmut Bley. 2 K. Schlosser, 'Die Herero in British Betchuanaland-Protektorat und ein Besuch einer ihrer Siedlungen Newe-le-tan,' Zeitschrift fir Ethnologie 80, 1955. 3 Deutsches Zentralarchiv I Potsdam, Reichskolonialamt 1496 Reisen des Staatssekretdrs Solf Denkschrift vom 27.5.1912. 4 ibid. 5 Archiv der Rheinischen Missionsgesellschaft, Mischehen, Missionsinspektor Spieker an Bokenkamp 15.6.1908 and Hartmann to Spieker 9.4.1910. See also note 3.

GENESIS: FROM CONQUEST TO MANDATE 6 See note 3. 7 DZA Potsdam RKolA 2173-2174 Verhandlungen des Gouvernementsrates in Windhuk, Dec. 1906 and May 1908. 8 See map 3 in Oelhafen v Schoellenbach, Die Besiedelung DeutschSüdwestafrikas bis zum Weltkrieg, Berlin 1920. 9 Summed up by G. Wagner, 'Aspects of conservatism and adaption in the economic life of the Herero', Sociologus NF 1952 and Vedder, 'Zum Tode Samuel Mahareros', Berichte der Rheinischen Mission 1923. 10 DZA Potsdam RKolA 2097, Großviehhaltung 1912-1914 and ibid. 1220 Einziehung von Vermögen Eingeborener im südwestafrikanischen Schutzgebiet 1905-1914. 11 See note 3. 12 RKolA, 2057-2059, die Kommunal- und Selbstverwaltung in SWA and Archiv der Rheinischen Mission, Mischehen. 13 Referencesin 1. 14 Deutschsüidwestafrikanische Zeitung 13.10.1903. 15 RKolA 2111-2116 Aufstand der Herero 1904. 16 Bundesarchiv Koblenz, Nachlaß Seitz Nr 5 p. 42, see also RKolA 2089 Differenzen zwischen Generalleutnant v Trotha und Gouverneur Leutwein bzgl. der Aufstände in Deutsch Südwestafrika i J 1904 and Die Kämpfe der deutschen Truppen in Südwestafrika vol. I Der Feldzug gegen die Herero, Berlin 1906, and Rust, Krieg und Frieden im Hererolande, Berlin 1905. 17 v Trotha an Schlieffen 4.10.04 and Schlieffen an Reichskanzler Bülow 12.12.04 RKolA 2089. 18 Ibid. Bülow an Wilhelm II 22.11.04. 19 See note 7. 20 RKolA 1220 Einziehung von Vermögen Eingeborener. 21 Deutschsüdwestafrikanische Zeitung 8.6.05 and 2.8.05. 22 Windhuker Nachrichten 5.4.1906. 23 P. Rohrbach, Kolonialwirtschaft, Bd. 1, Berlin 1907 p 21 24 Südwestbote 29.11.1911. 25 See note 3. 26 Gad, Die Betriebsverhältnisse der Farmen des mittleren Hererolandes, 1915 p 109. 27 Deutschsüdwestafrikanische Zeitung 21.8.07. 28 Missionar Dannert, Berichte der Rheinischen Missions 1910 p. 243f. 52

GERMAN SOUTH WEST AFRICA 30 Cramer, Weiss oder Schwarz, 1913 p 79. 31 Deutschsiidwestafrikanische Zeitung 21.8.07. 32 See note 24. "33 Gad p. 109. 34 See report and comments in Suidwestbote and Deutschsiudwestafri. kanische Zeitung 1911-1913. 35 Die Deutschen Schutzgebiete 1912/13 Jahresberichte ed Reichskolonialamt. 36 Ibid. p 169. 37 See note 12. 38 Sfidwestbote 3.1.12 (Ohlsen case). 53

The Origins of the 'Sacred Trust' by Wm. Roger Louis, Lecturer on the Expansion of and European Colonial Rule at Yale University: Author of 'Germany's Lost Colonies' Prime Minister Harold Macmillan's 'Wind of Change' speech, delivered in Cape Town in February 1960, marked the climax of forty years of growing divergence between the main lines of Britain's and South Africa's policies in the African continent. One reflection of this development in the last six years has been the contrasting fates of the territories for which the two powers became responsible as mandatories of the League of Nations. In retrospect it seems perhaps the natural course of events that Britain should have granted independence to the British , Togo and , and that South Africa should attempt to retain South West Africa as an 'integral portion' of her domain. Yet in 1919 few could have foreseen either the speed with which African nationalism would develop or the sudden withdrawal of Britain as a colonial power. Nor was it clear at the time that South African racial policy would complicate the issue of fulfilment or violation of the South West Africa mandate. The recent developments in the case before the International Court of Justice and General Assembly of the United Nations have coincided with the opening for the first time of the British official records

THE ORIGINS OF THE 'SACRED TRUST' of the peace-making at Versailles. It is therefore opportune to reexamine the origins of the South West African mandate: to recall that up to the very end of the First World War, British as well as South African politicians assumed that the future of the German colony lay in annexation to the Union; but that this assumption proved to be unfounded because of South African statesmanship as well as socialist and humanitarian influences; and that South West Africa played a critical part in securing the general acceptance of the mandates system by the Peace Conference. At the same time it is possible to discern the determination of South Africa from the outset to accept only a type of mandatory control that would imply no external interference, whether from Geneva or London. Before the outbreak of the First World War, prominent officials in England as well as in South Africa feared that the Germans eventually might use South West Africa as a base for military and naval operations to attack South Africa and to gain control of the southern route to India. Ideas of that sort existed even during the 1880s at the time of the founding of the German colony, when it appeared that the Germans might try to link their possessions on the east and west coasts and thus challenge British supremacy in southern Africa. The Kaiser's telegram to President Kruger a decade later seemed to most men of English stock to indicate that the Germans intended to align themselves with the . The South African war itself poisoned Anglo-German relations. At that time Germany became, according to the Daily Mail, 'the dumping ground of all the proBoer, anti-British canards and slanders of which England has been the victim since the commencement of the war'. During the Herero rising of 1904 the South African authorities were apprehensive that the 'native unrest' caused by the Germans might spill over into South Africa. Unable to govern the native populations satisfactorily, and apparently bent on fortifying the colony, the Germans in South West Africa seemed to menace British security at the Cape. So ran the ideas of those who subscribed to the theory that Germany was the leader of an anti-British conspiracy which existed not only in southern Africa but the world over. Those who were more willing to tolerate German activities in South West Africa - in a tradition running from Gladstone to Sir Edward Grey - tended to believe that the Germans could do little harm in a 'sterile sandhole', and, in any event, that the colony in time of war would easily fall before South African troops and British 55

GENESIS: FROM CONQUEST TO MANDATE sea power. Grey and some of his Foreign Office advisers were inclined to think that the Germans had certain legitimate grievances, such as the British retention of the gateway to South West Africa, its best port, (which remains today an undisputed South African possession). Other Englishmen prominent in colonial affairs such as Sir John Strachey of the Spectator and E. D. Morel of the Congo Reform Association had an even more conciliatory attitude than Grey and envisaged the growth of a vast Anglo-German condominium in which Englishmen and Germans would co-operate politically and economically in Africa, thereby improving conditions in Europe. This vast empire would have developed mainly at the expense of the Belgians and Portuguese, whom both the British and German publics regarded as inferior colonizers. The argument for depriving the Belgians and the Portuguese of their colonies was the same as that used during the First World War in regard to the Germans: because of cruelty to the African populations, they had forfeited their moral right as colonial rulers. During the war the British public heard much about 'German colonial atrocities'. But it is a historical fact that before the war the British humanitarians concentrated on maladministration in Belgian and Portuguese Africa and ignored the slaughter of the Hereros. Had an opinion poll been taken in England and South Africa before August 1914, the result probably would have been that the Germans were regarded as better colonial rulers than any others except the British. That attitude began to change after the outbreak of the war. 'Germany has not the genius for Empire building,' commented the Cape Times in November. 'She can only acquire Empire by conquest.'" A few months later the Cape Argus observed: 'As is well known, the natives of German South West have no reason to love the Germans. On the contrary, they retain a bitter memory of the fiendish treatment which they have been forced to endure. 'There is reason to hope that, as a result of the present war, Germany will share the fate which has already been suffered by her colonial ally, the unspeakable Turks, and be driven bag and

THE ORIGINS OF THE 'SACRED TRUST' baggage out of the African Continent . . . The German militarist at his worst is a stupid, unteachable brute, and it was to military men of this stamp rather than to experienced men of affairs that the delicate task of governing subject races has been generally entrusted. 'If instead of the unimaginative numbskulls and military pedants - men devoid alike of any sense of fair play or humanity - Germany could have commanded the services of men of the type of our own magistrates in the native territories, who have a sympathetic comprehension of the native standpoint, and above all desire to do justice, the nameless horrors of the war of extermination against the Hereros would never have disgraced the annals of German Colonial history . . . there is a melancholy satisfaction in the fact that if the necessity of a stern and uncompromising settlement should strip her of her possessions in Africa, it will be only a just retribution.'2 According to the South African East London Daily Dispatch: 'There is an unpleasant suspicion that after the war the German colony might even be handed back to its present owner. The mere suggestion is unthinkable to us after all that has happened and we cannot believe that any responsible person ever seriously entertained it. . . We trust . . . that before long we shall be able to announce the entire disappearance of the German flag from the African continent.'3 Within a year after the outbreak of the war, the English press in South Africa had concluded that the Germans were brutal and cruel colonizers and therefore that their colonies should not be returned to them. 'Barbarity' was not the only reason why most South Africans were alarmed at German activities in South West Africa. The following excerpts from the South African press indicate how the Germans were believed to be implicated in the Afrikaner rebellion that broke out in October, and how German South West Africa seemed to jeopardize the internal security of South Africa: 'In German South-West Africa were made plans for fomenting

GENESIS: FROM CONQUEST TO MANDATE civil war in the Union, for the invasion of its territory, and for the overthrowing of its elected government. German SouthWest Africa supplied men, arms, ammunition and money for the express purpose of making war upon a community for which it has professed friendship. (Rand Daily Mail, 21 December 1914). 'So many Free Staters . . . allowed themselves to be deluded by the spirit of faction into more or less openly sympathising with the rebellion, while not a few consented to become the dupes of a pro-German conspiracy which was hatched in the violent spirit of treachery, and which in reality aimed at nothing less than the overthrow of South African liberties.' (Cape Argus, 3 February 1915.) 'The rebellion, which they (the Germans) engineered with such characteristic cunning and duplicity was a scheme upon which they had undoubtedly set great store . . (Grahamstown Journal, 27 April 1915). 'Even in her oversea possessions, and notably in South-West Africa, Germany's colonisation has been directed on military lines and with military intent. She built her railways in as an obvious menace to the Union; her Press, official and semi-official, frequently spoke with enthusiasm of the great day when the German flag would wave over all South Africa; her designs on this country were notorious; and as soon as war broke out she compounded a plot . . . and she set to work by insidious means to undermine and overthrow British authority in South Africa.' (Cape Times, 10 .) When asked for specific evidence of German intrigue in South Africa, the Colonial Office could produce only an agreement concluded between the rebel leader, Colonel S. G. Maritz, and the South West Africa Government, by which South Africa would become a republic and South West Africa would acquire Walvis Bay.4 From the German point of view, that arrangement was no doubt intended as propaganda designed to stir up disaffected Afrikaners. To some extent however it backfired. Instead of sparking the widespread revolt feared by the Colonial Office (to the extent that Lewis Harcourt, the Colonial Secretary, made highly secret

THE ORIGINS OF THE 'SACRED TRUST' plans to send Australian troops to South Africa) German intervention in South African affairs was denounced by both English and Afrikaner communities, and the rising was easily crushed by forces under the command of the Prime Minister, General . 'In suppressing the rebellion,' he said in late December 1914, 'the Government have had the most hearty co-operation of both races. Let us have the same co-operation in German Southin German South-West Africa.' South African troops invaded South West Africa on 17 January 1915.6 The major force attacked , the principal German port. Advancing inland along the railway, Botha, commanding 43,000 men, captured Windhoek, the capital, on 12 May. 'The occupation of that city, 'commented the Cape Times, 'constitutes a death blow to all the fond hopes which have been cherished for so many years of future German domination in South Africa.'7 The Cape Argus was even more ecstatic: 'It is the greatest blow which has ever been dealt to the German ambition of world dominance.'8 The rest of the campaign consisted merely of rounding up the enemy by flanking movements in the north. On 9 July the Governor of the first German colony unconditionally surrendered his force of 204 officers and 3,166 men.9 It has been a white man's war fought between South Africans and Germans for control of a desert territory larger than Germany. The colony contained a European population of about 15,000 and an African one estimated at the time as 80,000. Apart from diamonds, it had yielded the Germans little in natural resources, and lack of water had hindered the chief industry of stock raising. In the words of one South African saying 'Farewell to German West': Deutsch West, thou art a land of pests ! For fleas and flies one never rests. E'en now your winds around me revel, Thy sand-storms are the very devil! Since first I knew thee, I've been cursed With an enduring, mighty thirst. But now I'll take a long farewell, Thou scorching sun-burnt, land of Hell 11110 59

GENESIS: FROM CONQUEST TO MANDATE Nevertheless it was the only German colony where, in its temperate areas, white men could settle; and therefore, among other reasons, the British press interpreted the conquest as a stunning defeat for German 'imperialism'. According to The Times: 'It is theirs no more. The colony where in a time of weakness and indecision we suffered Germany to plant her foot has been wrested from her by the prowess of the on whose disaffection she fondly built, and her name disappears from the map of South Africa. This great result . . . will leave its mark in the history of the world . . . So ends with a rare dramatic fitness the history of the first of German colonies."' Three themes emerged in the British press in regard to South West Africa at the time of the South African victory: the harmonious relations between Briton and Afrikaner during the campaign; the significance of the conquest; and the determination not to return South West Africa to the Germans. 'The conquest of German South-West Africa by troops of British and Dutch birth, drawn from the civilian manhood of the nation, in a land where we have too often been busily engaged in cutting each other's throats, actually and metaphorically, has struck the imagination of the world . . .' (Cape Times, 14 June 1915.) 'The unconditional surrender of the German forces in SouthWest Africa to General Botha is the first great and complete victory that has been gained by the British armies in this war.' (Daily Mail, 10 July 1915.) 'German South-West Africa . . . now becomes in fact a British possession.' (Cape Mercury, 14 .) So enthusiastically was the campaign greeted that 'Bothaland' was mooted as a possible new name for the territory. After offensive manouvres had begun by South African and other British troops on the east coast in February 1916, discussion also took place whether German should be renamed in honour of the South African commander-in- chief, General J. C. Smuts. To Rhodesia and 'Bothaland' would be added 'Smutsland'

THE ORIGINS OF THE 'SACRED TRUST' (that proposal however was not generally well-received because 'whether his name lends itself euphonically to reproduction may be doubted').12 Having co- operated in hauling down the 'flag of tyranny' in South West Africa, 'now Boer and Briton together are to bring another vast country under the flag of freedom.' '.. . As in South-West Africa, so in East Africa, our fellowcitizens of the will very soon expel the German flag from the territory over which it has too long been suffered to fly. Wherever Germany rules there is tyranny and brutality, and no greater boon could be conferred upon the native races of Africa than to relieve them from the abomination of German misgovernment."13 'It is not the standard of civilisation that vanishes from the map but the black flag of a nation of spies and criminals.'4 Smuts and his followers thought that they were fighting for the security of South Africa in hardly less than in South West Africa. As the 'great white community in Southern Africa,' Smuts said in March 1916, the Union was 'profoundly interested in the future settlement and destiny of this Sub-Continent'; in fulfilling their mission they would 'provide greater security and elbow room.'15 With his 'sledge-hammer tactics' against the Germans in East Africa, he believed that he was increasing South African influence there. The press in England acknowledged that he was. According to the Nation: 'If he (Smuts) succeeds . . . the results will be important, for if we win the war they will add to South Africa's already powerful voice in the final fate of the captured German colonies.' (12 February 1916). In the words of the Birmingham Daily Post: '... Anybody who has the slightest acquaintance with affairs in South Africa knows that the late German South-West Africa colony will never be returned to its former owners, and that German East Africa will also not be disposed of without some reference to the wishes of Union statesmen.' (5 September 1916).

GENESIS: FROM CONQUEST TO MANDATE Smuts wished to see the growth of British sway throughout southern Africa. He conceived of a young, vigorous South Africa evolving in strength through internal harmony between Briton and Afrikaner and in external union with a -Commonwealth in which Englishmen, Canadians, Australasians and South Africans would have equal voice. At least part of his vision was shared by certain organs of the British press. 'Dear General Smuts: . . . You are not only helping in the work of crushing Germany; you are cementing the bonds of Empire in a noble and generous fashion.' (Reynolds' Newspaper, 30 April 1916.) 'If the Germans needed any proof that we are not decadent, they have found it fully demonstrated in the whole campaign against them in Africa . . . our are essentially the product of Youth . . . that is why the South Africans have carried their campaigns to such splendid success, both in German South- West Africa and in East Africa.' (Graphic, 15 April 1916.) In Smuts' own words, the Dominions had rallied to the Union Jack because 'they realize that the Empire is essential to their own security as well as to the cause of human liberty in general.'16 That statement is the key to his thought that eventually contributed greatly to the founding of the mandates system.17 By the close of 1916 all of the German colonial forces had been conquered except the East African contingent, which Smuts had 'kraaled' in the south of the colony. In July of the next year Smuts joined Lloyd George's War Cabinet. More than any other member he followed developments concerning the German colonies and considered their significance in relation to the general problems of war and peace in Europe. The 'side show' campaigns, such as those in South West and East Africa, in his view, had achieved one of the basic British war aims: the 'destruction of the German colonial system with a view to the future security of all communications vital to the British Empire."8 Time and again he emphasized the importance of securing the imperial 'lines of communication'. In one of his famous 'war-time speeches' he told his audience: 'In the past thirty years you see what has happened. Everywhere on your communications Germany has settled down; everywhere upon your

THE ORIGINS OF THE 'SACRED TRUST' communications of the whole globe you will find a German colony here and there, and the day would have come when your Empire would have been in very great jeopardy from your lines of communication being cut.'9 He attached special importance to South West Africa. As he stated before a committee of the Imperial War Cabinet appointed to consider territorial questions: '.. . the retrocession of German South-West Africa was absolutely impossible, even in the contingency of a completely unsatisfactory peace. It would mean the submergence of those who had made every sacrifice on behalf of the Empire in South Africa, and would bring other elements to the front whose predominance would jeopardise the whole position in South Africa.'20 Smuts had no difficulty in carrying his point. The committee's report, which clearly defined British colonial aims at this stage of the war, contained the following passage: 'the restoration to Germany of South-West Africa is incompatible with the security and peaceful development of the Union of South Africa, and in no circumstances should be contemplated.'21 In the Allies' reply to President Wilson's 'Peace Note' of December, 1916 - which had urged the conclusion of a peace without territorial aggrandizement - no mention had been made of the German colonies. The silence of the British Government on this point caused alarm in the southern Dominions of South Africa, and New Zealand. According to the Cape Times: 'If the British Ministry imagined - which we don't for a moment suppose to be the case- that the Union, New Zealand and Australia would consent to give back what they have taken from Germany merely in a spirit of lofty altruism and self- effacement, the British Ministry would be very much mistaken . . . public opinion in the Union will not be in the smallest degree impressed by what reads uncommonly like unctuous balderdash . . . To restore the Colonies merely in order to demonstrate Britain's disinterestedness would be an act of gratuitous folly.'22 Those typically African opinions were shared generally not only by Smuts but also by his colleagues in the British Government most

GENESIS: FROM CONQUEST TO MANDATE interested in colonial problems, Lord Curzon, Lord Milner and the Colonial Secretary Walter Long. On 31 January 1917, Long stated that the conquered German colonies 'would never revert to German rule . . . It is impossible. Our oversea Empire will not tolerate any suggestion of the kind.' Smuts was pleased: 'Nothing has given greater pleasure than Mr. Long's statement that no German colony can go back to Germany. The mere suggestion that any part should be returned is, of course, preposterous. I shudder to think what would happen to the native population if any part were returned. These people have stood by us magnificently, and our prestige in East Africa would severely suffer. The whole of South Africa, South-West Africa, and Rhodesia would stand aghast at such an idea.'-3 The South African at the highest rung in the British Government thus consistently held that there could be no alternative to his country's control over South West Africa - a view that was supported heartily by the South African Government and press and by most of the members of the British Government, Parliament and the majority of British newspapers. The logic of that view obviously implied annexation; and the developments in which South West Africa played a key role in the final acceptance of the mandates system constituted at the time a diplomatic defeat for the British hardly less than for the South African Government. The minority view held in English circles on the political left during 1917 felt that 'imperialism' was a cause of war and that it should be checked. The Labour Party, espousing doctrines related to those advocated by the Russian revolutionaries and the President of the United States, urged that all European colonies should be placed under a supernational authority in which national European sovereignties would be abolished. By creating a tropical African Independent Free State, Sydney Webb, Ramsay MacDonald and E. D. Morel hoped to protect indigenous populations from exploitation and eventually enable them to determine for themselves what sort of government they would prefer. Discrediting the tales of German 'colonial atrocities' as exaggerated - and believing that a German trade outlet in was essential for world peace

THE ORIGINS OF THE 'SACRED TRUST' -they urged that Germany also should be included in this vast African enterprise. 24 That proposal was immediately attacked from almost all quarters. John H. Harris of the Anti-Slavery and Aborigines Protection Society - who as the author of Germany's Lost Colonial Empire25 was one of the leading denunciators of German colonial administration - regarded it as a 'crazy scheme'. Representative of those who held moderate opinions on the subject, Harris put forward certain other proposals that resembled those that eventually were embodied in the mandates system. '.. . I feel very strongly that there ought to be International Control of tropical Dependencies; I agree that the idea of International Administration is absolutely rotten; the thing could never work, but surely the effective development of principles laid down at an International Conference on such subjects as the drink, the abolition of slavery, a Bureau for recording statistics of disease, inter-colonial regulations for measures against disease, provide a field for international effort, without any interference with international sovereignty - in that way lies madness.'26 During the rest of the year similar ideas were discussed widely in the press. The public interest shown in the matter, as well as the need to bring British war aims more into alignment with those of the United States, probably led the Prime Minister, Lloyd George, to announce in July that 'the desire and the wishes of the peoples must be the dominant factor' in determining the fate of the German colonies. The following January he declared in his 'British War Aims' speech: 'With regard to the German colonies I have repeatedly declared that they are held at the disposal of a Conference whose decision must have primary regard to the wishes and interests of the native inhabitants of such Colonies. None of those territories are inhabited by Europeans. The governing consideration, therefore, in all these cases, must be that the inhabitants should be placed under the control of an administration, acceptable to themselves, one of whose main purposes will be to prevent their exploitation for the benefit of European capitalists or governments.

GENESIS: FROM CONQUEST TO MANDATE 'The natives live in their various tribal organisations under Chiefs and Councils who are competent to consult and speak for their tribes and members and thus to represent their wishes and interests in regard to their disposal. The general principle of national self-determination is, therefore, as applicable in their case as those of occupied European territories.' (Italics added.) To make sure that the indigenous populations would 'self-determine' in favour of the British, the Colonial Secretary on the day before Lloyd George's speech, 4 January 1918, had sent secret telegrams to the Governor-Generals of South Africa, Australia and New Zealand requesting them to provide 'evidence of anxiety of natives to live under British rule. He received this reply from the Governor-General of South Africa: 'I cannot see how the principle of national self-determination could be applied to it (South West Africa) and it will always be more a European than a native territory, since, thanks to the Germans, there are comparatively few natives. 'You are well aware that almost all sections in the Union would keenly resent the return of the Colony to the Germans, and that it would be politically disastrous, and while the natives, both Ovambos and the rest, would almost all certainly elect to remain under British rule, they could hardly be given a more influential voice than the German inhabitants. If the latter had to vote on the future of the territory the result would scarcely be in doubt, but if the territory were annexed to the Union most of Germans would probably remain and become loyal and useful citizens.'"2 A plebiscite for South West Africa was never considered seriously. It was not necessary. The Foreign Office's publication of the 'atrocity Blue Books'128- one of which contained photographs of Africans hanged by the Germans - reinforced the conviction that the Germans had committed such atrocious acts that the African population of South West Africa could not help but have a pro-British attitude. 'If the wishes of the natives are to have weight, it is beyond doubt that they are all for British administration . . . native opinion in the colony is unanimously against any idea of its ever THE ORIGINS OF THE 'SACRED TRUST' being handed back to the tender mercies of Germany, and any suggestion of the possibility of an act of that kind on the part of Great Britain produces the utmost consternation.' The argument of 'self-determination' clearly worked in favour of the British when applied to South West Africa. A few weeks after Lloyd George's war aims speech, Smuts addressed the Royal Geographical Society. Instead of discussing 'self-determination' and 'native welfare', he chose to talk about German colonial aims and the economic and strategic value of tropical Africa. Judged by the amount of commentary in the press, it was probably the most important speech made on colonial problems during the entire war. 'The Germans,' he said, 'are not in search of colonies after the English model. They are not on the lookout for overseas homes for settlers from Germany, and their East African Colonies had no white population to speak of before the war ... ' 'German colonial aims are really not colonial, but are entirely dominated by far- reaching conceptions of world politics. Not colonies, but military power and strategic position for exercising world power in future are her real aims. 'Her ultimate objective in Africa is the establishment of a great Central African Empire, comprising not only her Colonies before the war, but also all the English, French, Belgian and Portuguese possessions south of the and Lake Chad, and north of the Zambesi River in South Africa . . . 'The civilisation of the African natives and the economic development of the Dark Continent must be subordinated to the most far-reaching schemes of German world-power and worldconquest; the world must be brought into subjection to German militarism and, as in former centuries, so now again the African native must play his part in the new slavery.' If the Germans were given the chance to create a , Smuts declared, it would jeopardize the security of the entire British Empire. Straddling the sea lanes of the Pacific and Indian Oceans, Germany would be able to dominate even and Australasia, not to mention South Africa and India. By militarizing the black populations of tropical Africa and exploiting the resources

GENESIS: FROM CONQUEST TO MANDATE there to increase German power, the Germans, Smuts implied, would endanger western civilization itself.29 By conjuring up a German 'black peril', Smuts caught the public's imagination. That speech and the ones he made later in the year were given enormous publicity. His ideas reverberated throughout the British press. 'The world owes General Smuts a debt of gratitude for his exposd of the threat to civilisation entailed in Germany's colonial plans.' (Express and Star, 29 January 1918.) 'There is no prospect of peace in the sub-continent if the nation is to be allowed to exploit the natives for the formation of an army of blacks on the Prussian model and to use the soil simply as a vast plantation to provide raw materials for German factories.' (Yorkshire Herald, 30 January 1918.) 'A great black army would be planted on the flank of , whose forces would be felt all through the as far as Persia, and perhaps India.' (Star, 29 January 1918.) 'We do most ardently desire that the map shall not be spotted with German military and naval settlements, threatening our sea-communications, and providing depots for invading armies in a new war, and we, therefore, say that the winding-up of Prussian militarism is the key to this as to other problems.' (Westminster Gazette, 29 January 1918.) 'If Germany thinks that her colonies will be restored to her to be used as future bases of militarism she is living in a fool's paradise.' (Wales Daily News, 30 January 1918.) 'Let there be no mistake about it: apart from considerations of justice to the native populations, of preserving Africa from the militarism of the Prussian, and of material gain, the return of the German to Africa would involve an invasion of British seapower which, in self-defence, this country cannot for an instant contemplate.' (Morning Post, 31 January 1918.) 'Fortunately for the African native and the British Empire the Allies have blown the flimsy foundation of this mid-Hell Afrika to atoms.' (South Africa, 2 February 1918.) 'It is perfectly plain that they (Smuts' statements) do not clash

THE ORIGINS OF THE 'SACRED TRUST' in any way with the declared aims of the Allies, as expressed by Mr. Lloyd George.' (Sussex Daily News, 30 January 1918.) Smuts also drove home the importance and urgency of the colonial question to the War Cabinet. 'I feel convinced,' he wrote in a vigorously argued and lengthy memorandum of 11 July 1918, 'that the lost German Colonies and German colonial ambitions generally constitute one of the most difficult and important problems which will confront us at the Peace Conference. 'Certain Dominions can justly claim that German colonies lying contiguous or adjacent to their territory and conquered by them should at the arrival of peace remain under their control. This probably covers the case of... German South- West Africa so far as the Union of South Africa is concerned... 'In regard to German South-West Africa in particular, which adjoins the Union for many hundreds of miles of frontier, I am clear that its restoration to Germany would damage the Imperial position in South-Africa beyond repair.'30 In those statements there was nothing new. Smuts based his arguments on his usual assumption that the Germans at the Peace Conference would fight for a German central African empire, but in return would probably yield their colonies in the Pacific 'and perhaps even in South-West Africa'. In his concluding remarks, however, he discussed fully how the British might cope with the German bid for a central African empire if the war ended inconclusively; and, if the Allies achieved a conclusive victory, how international control over tropical Africa might foster British security. 'Security' remained his primary concern. He urged the incorporation of South West Africa into the Union to protect South Africa from aggression; and he advocated British control over German East Africa to give the Empire not only continuous land but also air communication from the Cape to Cairo. He envisaged an expanding, vigorous South African dominion as the key to British security in that part of the world. He did not find those ideas incompatible with the conception of a League of Nations and international control in tropical Africa. The following excerpts from his seminal memorandum reveal his thought along those lines: 69

GENESIS: FROM CONQUEST TO MANDATE 'Wars are uncertain things, and it is conceivable that in the end we may be obliged to accept some compromise in regard to tropical Africa. The question will then arise as to the comparative value we attach to the East or the West, the territories on the Indian or the Atlantic oceans respectively. If the question should ever arise whether we ought rather to retain German East Africa on the one hand or the Cameroons and on the other, I would urge that the choice be given in favour of German East Africa... 'It is possible that with the submarine peril and other future 'dangers to sea routes, land routes may hereafter become of much greater strategic importance. Indeed the present war has already shown the immense value of purely land routes to the enemy. Africa is already a predominantly British continent and may become even more so in the future, and the existence of through land and air routes may be essential to its future defence. If a sacrifice is to be made it should be in the west and the free unhampered continuity of our communications along the eastern backbone of the continent should be preserved. The air journey from Pretoria to London, and vice versa will become practicable immediately after the war, will not take more than three or four days, and will mean a revolution in communication. It is very important that there shall be no intervening hostile territory to cross. 'I proceed to consider an alternative compromise of a different character which will not mean the surrender of any German colony. Although the German idea of a Central African Colonial Dominion must be ruled out, there is much to be said for the policy of handling Central African problems on a common basis. Nothing struck me more in that part of the world than the vast difference in development between the colonies of the progressive and the weak nations respectively. More has been done in 25 years in British and German East Africa than had been accomplished in 400 years of Portuguese rule next door. And yet the Portuguese sit with vast areas of the African continent, backward, undeveloped, misgoverned or not governed at all. 'There is the further consideration that German concessions

THE ORIGINS OF THE 'SACRED TRUST' may make of the Portuguese Colonies new sources of military or naval danger to us. Before the war the German Government had financed a concession company in order to obtain control of the northern area of Portuguese East Africa with at least one very fine harbour. This company controlled a Portuguese charter which entitled the holders to almost sovereign powers. And after the war there will be nothing to prevent a continuance and even an accentuation of this state of affairs. The result will be that Portuguese East and West Africa may take the place of the old German Colonies as a menace to our communications. This is surely an intolerable situation and the question arises whether, instead of the German block, it would not be possible after the war to establish some international control over the national colonies in tropical Africa, which will guarantee their peaceful non- militaristic exploitation on a common basis for the production of raw materials for the free and common use of the world. 'This Control or Development Board, constituted under an International Convention over the tropical African Colonies at the end of the war, would consist of representatives of the United Kingdom, France, Germany, and Portugal under the Chairmanship of, say, an American nominee. It would leave the national flags of the colonies alone, would supervise the execution of the provisions of the Convention, would develop the resources of the various colonies with the participation of capital from all the countries represented on the Board, and would control the distribution of raw materials to those countries. 'The difficulties in the way of such a Board are immense, but the advantages accruing from its establishment would be very great. As Germany wants raw materials and not homes for white settlement in Africa, she may in this way more easily acquiesce in the loss of her colonies. The equal development of that immense area for the common good of mankind would be guaranteed and a fruitful source of future international trouble would dry up. And lastly, a foothold would be given to the international system of the future which would be far more promising and fruitful than the vastly difficult and contentious matters of international disarmament and peace. ,

GENESIS: FROM CONQUEST TO MANDATE in fact, might form the beginnings of the jurisdiction of the League of Nations. 'It will be noticed that the scheme suggested does not involve the internationalisation of Central Africa . . . nor does it involve the Condominium or common ownership and administration by the powers of the present national African colonies. It still leaves the colonies national property and under national administration, but for certain defined purposes it establishes the super-control of an International Board. I see no reason why this Board should not be a success on the lines of our Versailles practice, and if successful it would be one of the greatest steps forward from the national jealousies of the past to the international system of the future. 'Some such scheme would probably also secure the approval and support of the Government of the United States, and from the British point of view that is a consideration of primary importance.'3' In the last months of the war and during the period before the Peace Conference, the British Government became more and more intent, as Smuts put it, on 'playing up to America, and moving her on to back us up'. He continued: 'My point is to try and get America on to our side. President Wilson is fighting for a League of Nations. If he can go back home from the Peace Conference with this point in his favour, he will go a long way to meet us on particular points and help our programme again, and really our programme is an unselfish one. I would try, therefore, to get America into European politics; it is no use her sitting outside. Let her undertake the burden and feel the responsibility.' The responsibility Smuts had in mind did not involve the German colonies, but the fallen Empires in and the Middle East. 'The thing would work out like this. The League of Nations, for the larger purpose, would step into the shoes of the old Turkish and Russian Empires. These peoples so far as they are of any

THE ORIGINS OF THE 'SACRED TRUST' vitality, would become little autonomous States . . . The result would be, supposing America were to undertake this job, America would keep a large general control over Georgia, but not in her own right, she would do it under a general act of mandate . . .'32 He attached supreme importance to getting the United States to assume 'mandatory responsibility'. 'I am profoundly impressed,' he wrote to Lloyd George a few days before the beginning of the Peace Conference, 'with the necessity of your urging the Americans to bear their share of responsibility for the future peace arrangements of Europe. The USA must become a mandatory in some territory of first-class importance . . . in return they may be willing to give us a free hand in respect of the German Colonies and Turkish possessions claimed by us, either outright or as mandatories.'33 One of the territories claimed 'outright', of course, was South West Africa. Despite his proposal for an 'International Development Board', Smuts did not wish for the former German territories to become 'mandates'. 'The German Colonies in the Pacific and Africa,' he wrote, 'are inhabited by barbarians, who not only cannot govern themselves, but to whom it would be impracticable to apply any ideas of political self-determination in the European sense.'34 His own logic, however, put him in an untenable position. If he espoused the general principle that conquered territories should be held in trust, how could he contend that South West Africa deserved to be an exception? Try he did, but the following letter written during the Peace Conference shows that he recognized the flaw in his argument. 'Yesterday we discussed the Dominion claims to the German colonies. I hope I made a good case to South West Africa, but I don't know. My argument was principally that it was a desert, a part of the Kalahari no good to anybody, least of all to so magnificent a body as the League of Nations! It was like the poor sinning girl's plea that her baby was only a very little one! Not that I consider our claim to South West Africa sinful or wrong.'35 A few days later he lamely commented that his mandatory idea had 'won its way through . . . and even the German colonies have 73

GENESIS: FROM CONQUEST TO MANDATE been brought into the scheme.'6 Not without reason, a writer for the Morning Post observed that 'General Smuts is hoist by his own petard.' 'In his pamphlet he applied this method of disposal to the territories of Russia, Austria, and Turkey, but excluded its operation from the captured German colonies. President Wilson, encouraged by the pamphlet, evidently found no distinction between one set of captured territories and another, and applied to them all the Smutsian rule, to the amazement and disgust of our Dominions.'"3 Smuts ensnared by his own idealism is perhaps a tempting interpretation of the origins of the South West Africa mandate, but it misses the mark. He himself had supervised the preparation of the British 'brief' on the German colonies to be used at the Peace Conference, and he had made explicitly clear the circumstances and conditions in which Britain would tolerate international control in South West Africa. 'Unconditional annexation of the German Colonies,' he wrote to the Colonial Secretary in November 1918, 'should be pressed for to the utmost.' He continued: 'In case that contention should fail, we should continue to hold them subject to control of the League of Nations in regard to certain specific subjects (liquor, arms, fortification, etc.). Such control should be laid down in an Act of a general character so that the French and others are bound in the same way as ourselves. You will see there is here nothing . . . about joint control, and a small concession is made about the League of Nations which might have the effect of securing the support of the United States to our holding on to these Colonies if our other lines of argument fail. 'Our Delegates will, of course, not make this concession until it becomes necessary to carry President Wilson with them.'38 Those tactics were exactly the ones used by the British delegates at the Peace Conference, which convened on 18 January 1919. On 24 January Lloyd George raised the question of the German colonies before the Supreme Council of the Peace Conference. One of his first comments was that the Germans had 'deliberately pur74

THE ORIGINS OF THE 'SACRED TRUST' sued a policy of extermination' in South West Africa. President Wilson replied that all were agreed that the colonies should not be returned to Germany. Lloyd George then suggested three possible ways of dealing with them- internationalization, control by the League of Nations, and annexation - and proceeded to put forward the case for annexation in regard to South West Africa. 'German South West Africa was contiguous to the territories of the Union. There was no real natural boundary and unless the Dutch and British population of South Africa undertook the colonisation of this area it would remain a wilderness. If the Union were given charge of German South West Africa in the capacity of a Mandatory there would be in a territory, geographically one, two forms of administration. It was questionable whether any advantage would be derived from this division capable of outweighing its practical difficulties.'39 Following Australia's presentation of claims to German islands in the Pacific, Smuts elaborated the Union's case for South West Africa along the same lines as he had throughout the war. South West Africa, he said, was a desert that geographically belonged to the Union. In that way it differed from Germany's valuable and productive colonies in tropical Africa, where the mandatory principle might be more applicable. Germany had exterminated the natives; the Union 'had established a white civilization in a savage continent and had become a great cultural agency all over South Africa.' He hoped that the Conference would 'give' the colony to the Union, and said that he was sure his country's work in that respect 'would be good'.40 Partly out of respect for Smuts, Wilson was sympathetic towards the Union's case.41 But for various complicated reasons he did not wish to see South Africa annex the former German colony. If the South Africans were permitted to incorporate South West Africa into the Union, it would be more difficult to resist annexationist claims put forward not only by other British dominions, but also by the European powers and - uppermost in Wilson's mind - Japan. He was determined to avoid the impression that the Peace Conference was dividing up the spoils - to prevent world opinion from thinking 'that the Great Powers first portioned out the helpless parts of the world, and then formed a League of Nations'. On 27 January he 11 lilll

GENESIS: FROM CONQUEST TO MANDATE explained why mandatory control over South West Africa would be preferable to annexation, and clarified his general ideas about the role of the League of Nations in that connection. 'The case of South West Africa would be found a most favourable instance to make a clear picture. South West Africa had very few inhabitants, and those had been so maltreated, and their numbers had been so reduced under German administration, that the whole area was open to development that could not yet be determined. Therefore, either it must be attached to its nearest neighbour and so establish what would seem a natural union with South Africa, or some institution must be found to carry out the ideas all had in mind, namely, the development of the country for the benefit of those already in it, and for the advantage of those who would live there later. 'This he assumed to be the principle: it was not intended to exploit any people; it was not intended to exercise arbitrary sovereignty over any people. 'The purpose was to serve the people in undeveloped parts, to safeguard them against abuses such as had occurred under German administration and such as might be found under other administrations. Further, where people and territories were undeveloped, to assure their development so that when the time came, their own interests, as they saw them, might qualify them to express a wish as to their ultimate relations - perhaps lead them to desire their union with the mandatory power. 'Should the Union of South Africa be the mandatory of the League of Nations for South West Africa, the mandate would operate as follows:- In the first place, the League of Nations would lay down certain general principles in the mandate, namely, that districts be administered primarily with a view to the betterment of the conditions of the inhabitants. Secondly that there should be no discrimination against the members of the League of Nations, so as to restrict economic access to the resources of the district. With this limitation, the Union of South Africa would extend such of its laws as were applicable to South West Africa and administer it as an annex to the Union so far as consistent with the interest of the inhabitants.

THE ORIGINS OF THE 'SACRED TRUST' '. . there would be no administrative difference between his scheme and annexation . . . 'The fundamental idea would be that the world was acting as trustee through a mandatory, and would be in charge of the whole administration until the day when the true wishes of the inhabitants should be ascertained. It was up to the Union of South Africa to make it so attractive that South West Africa would come into the Union of their own free will. Should that not be the case, the fault would lie with the mandatory . . . 'He would ask; Was this merely camouflage: a means of bringing about the willingness of the people to be united with the Union, to which the Great Powers were not now willing to consent. He would answer, No, as under the mandatory the administration would be so much in the view of the world that unfair processes could not be successfully attempted. If successful administration by a mandatory should lead to union with the mandatory, he would be the last to object.'42 Following that strong statement by President Wilson, Smuts on the same day began his tactical retreat outlined in his letter of 28 to the Colonial Secretary. The meeting of the Supreme Council before which Wilson had insisted that all former enemy colonies and dependent territories should be placed under the control of the League of Nations had met at 3 pm on 27 January. At 6.30 on the same day the British Empire Delegates convened and Smuts stated: 'Lord Robert Cecil [the British delegate charged with the League of Nations question] and he had agreed to class the problem under three heads - (1) German Colonies with a British Dominion next door. In these cases there should be annexation. For many reasons it was impossible to make a Dominion into a mandatory. (2) German Colonies in Central Africa. These were to be distinguished from the first class by the circumstance that the world, as a whole, was interested in them. They were cases for a mandatory, but on the basis that the mandatory should be a Power with sovereign rights subject, however, to restrictions in relation to arms, liquor, etc., and the open door. Great Britain and France should be the mandatories in Central Africa, and

GENESIS: FROM CONQUEST TO MANDATE should bear any expense involved. (3) Other cases where the people of the territories in question could speak for themselves, but where they required assistance in government and in the development of the country, e.g., Syria and Mesopotamia. At this point the subject became part of the subject of the League of Nations . . .,43 Despite the implied division of the occupied territories into three classes (which shortly were to become in inverse order the 'A', 'B' and 'C' mandates) the British Empire Delegation still refused to admit that South West Africa should fall under the influence of the League of Nations. The next morning, 28 January, in a lengthy conversation with Lloyd George, Wilson insisted that he 'could not return to America with the world parcelled out by the Great Powers'. That afternoon at a meeting of the Supreme Council, after the presentation of French claims to Togoland and the Cameroons, Wilson 'observed the discussion so far has been, in essence, a negation in detail - one case at a time - of the whole principle of mandatories.' 'He pointed out that Australia claimed sovereignty over German New ; the Union of South Africa over German South West Africa, and Japan over the leased territory of Shantung and the ; while France claimed a modified sovereignty over the Cameroons and Togoland under certain terms.'4 Lloyd George reported to the British Empire Delegation the next morning, 29 January, that 'he feared a deadlock, and that the President would leave this country before an agreement had been reached.'45 The colonial issue at this stage thus threatened to disrupt the proceedings of the Peace Conference. The line taken by the South African delegates at this juncture saved the day for Wilson and the application of the mandate principle to the German colonies. Using all of his political ingenuity, Lloyd George persuaded the Prime Minister of Australia and New Zealand to accept a compromise prepared by Smuts by which South West Africa and the Pacific Islands also would become mandates, but they would be administered as 'integral portions' of the mandatory powers. Nevertheless, on the next day, 30 January, Prime Minister Hughes of Australia collided head-on with President

THE ORIGINS OF THE 'SACRED TRUST' Wilson. After the presentation of Australasian sentiment against the mandates proposal, Wilson asked whether 'Australia and New Zealand were presenting an ultimatum to the Conference . . .' Hughes replied, 'that's about the size of it, President Wilson'.46 At that dangerous point General Botha (who along with Smuts represented South Africa) intervened. The minutes of the meeting include the following paragraph of his speech. 'He appreciated the ideals of President Wilson. They were the ideals of the people of the world, and they would succeed if they all accepted them in the same spirit and supported them in the manner in which they were intended . . . Personally he felt very strongly about the question of German South-West Africa. He thought that it differed entirely from any question that they had to decide in this conference, but he would be prepared to say that he was a supporter [of the mandates proposal] . . . he knew that if the idea fructified, the League of Nations would consist mostly of the same people who were present there that day, who understood the position and who would not make it impossible for the mandatory to govern the country. That was why he would accept it.'47 Botha's speech carried the day. Wilson feared that if the matter were carried further the powers with annexationist claims might not adhere to the Covenant; he agreed to the compromise. The Australasians intensely disliked the idea of anything less than full sovereignty over the German islands in the southern Pacific, but under great pressure they acquiesced in the mandates proposal. The opposition to the scheme thus did not come from France (Clemenceau had consented to it on 28 January) nor from South Africa, but from Australia and New Zealand. The following passage of the arrangement, which later became Article 22 of the League Covenant, is the one relevant to the 'C' mandate of South West Africa: '... there are territories, such as South-West Africa and certain of the Islands in the South Pacific, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the mandatory state, and other circumstances, can be best administered under the laws of the mandatory state as

GENESIS: FROM CONQUEST TO MANDATE integral portions thereof, subject to the safeguards . . . in the interests of the indigenous population.' On 8 May 1919 South Africa was designated the mandatory power in South West Africa and accepted the responsibility of submitting an annual report to the League of Nations on the territory committed to its charge. The public response to the creation of the mandates system was one of scepticism in England as well as in South Africa. Although a few newspapers, such as the Manchester Guardian and the Daily Chronicle gave a lukewarm greeting to the mandates system as a step towards the realization of international idealism, much of the press commentary in England as well as in South Africa was extremely critical. On the political left, such writers as J. A. Hobson denounced it as 'a thin veil for the annexation of enemy countries and the division of the spoils . . .'4 On the right the conservative newspapers such as the Globe attacked the business of 'giving away the empire'. 'International control, sooner or later, means German control. For what purpose, then, will the war have been fought.'49 Opinion in South Africa ran along similar lines. Die Burger, the principal Afrikaner organ, regarded the mandates system as a hypocritical invention of British imperialism. The Cape Times made its opinion clear in the title of one of its leading articles, 'the Mandatory Muddle'. Throughout South African opinion ran the idea that the mandates system would make little difference. According to the East London Daily Dispatch: 'Now international control is no new thing . . . In practice it [the mandates system] will probably mean that Britain or her Dominions will take over the management of most of Germany's late colonies and administer them in accordance with the well-established British colonial policy. 'Nominally the mandatory Power will be the trustee of the League of Nations, but actually she will have a free hand in the administration of the new territories, so long as her system of government is not in conflict with the principles for which the League stands.'60

THE ORIGINS OF THE 'SACRED TRUST' The periodical South Africa stated the point at the back of everyone's mind more sharply: 'If South-West Africa is not annexed to the Union, we do not know what annexation is. It will remain British "pink" on our maps . . . 'What is a mandate? What is to be the final elucidation of the mandatory theory? We know, and all South Africans know, what it must not mean. It must not mean that the natives of South-West Africa are to have any ground for supposing that if they are dissatisfied at any time with the Union Government some mysterious League across the seas will take up their imaginary grievances. The mandatory theory will have to be very carefully applied to South-West Africa, or it may easily contain the germs of future trouble.'51 The Grahamstown Journal also feared that the mandatory powers 'may find themselves in an impossible position between the inhabitants on the one side and the League on the other.'52 Possible international interference lay at the heart of British reservations about mandatory control. On what grounds the League could intervene was by no means clear. In the opinion of the Pall Mall Gazette: 'a mandate which the League of Nations can give it can also take away'.53 But did the League actually have the authority to do so? To what extent did the League have jurisdiction over South West Africa? Those points were of paramount importance in the subsequent debates among international lawyers, so it is important to make clear how the founders of the mandates system regarded the question of sovereignty and jurisdiction. President Wilson had no precise answers to those questions.54 Nor, apart from Smuts (and possibly Balfour), did any of the British leaders. Milner, Colonial Secretary during the Peace Conference, made this revealing comment: 'we are opening a new chapter in International Law . . . 'The mandated territories are to be under the supervision of the League of Nations. But actual authority, in each of these territories will be exercised by one member of that League. I leave it 81

GENESIS: FROM CONQUEST TO MANDATE to the lawyers to say, where the "sovereignty" will in any case reside. As it seems to me, there will in all mandated territories, be in a sense a divided "sovereignty". From the practical point of view that does not appear to me to present any great difficulty. What is essential is to get rid of the existing sovereignties.'54 Apart from that fleeting observation, Milner, like most statesmen at the Peace Conference, had little time for legal conundrums. Smuts as usual was an exception. Trained in the law, and especially interested in the disposal of the German colonies, he was sensitive to the legal difficulties that might arise. An important legal question did arise in October 1919 when the Government of New Zealand telegraphed Milner that the administrator of Samoa was anxious to have a clear statement of 'finality' in order to stop rumours that a power other than New Zealand might be given the mandate. The basic issue involved was the granting of authority for New Zealand to rule and legislate. Did that authority derive from the League of Nations or from the King, and if the latter, in what capacity? Milner and his staff proceeded to prepare an Order in Council under the Foreign Jurisdiction Act - implying, in other words, that authority emanated from the 'King in his British Government'. Smuts objected. The South African parliament, he argued, had the power to legislate for South West Africa (a contention that rested ultimately on jurisdiction by conquest). In Smuts' opinion this particular question had nothing to do with the League of Nations. It was a matter that solely concerned British constitutional law. Criticizing the proposed Order in Council for Samoa, Smuts telegraphed Milner: 'Mandate over Samoa is given not to United Kingdom, but to New Zealand; that is to say, to His Majesty not in his British Government, but in his Dominion Government. King in his British Government or Privy Council is not concerned, therefore, and British Order in Council is beside the point. It would only apply where effect is to be given to mandate like German East Africa which was conferred on His Majesty in his British Government... Any Act purporting to confer jurisdiction over mandated territories like South-West Africa or Samoa must emanate from His Majesty in his Dominion Government, on whom alone the mandate was conferred...,5e

THE ORIGINS OF THE 'SACRED TRUST' The Colonial Office submitted the question to the Law Officers of the Crown, who studied the wording of the 'C' mandates. The following passage pertains to South West Africa: 'the territory over which a mandate is conferred upon His Britannic Majesty for and on behalf of the Government of the Union of South Africa . . . 57 The Law Officers, whose ideas reflected the trends of constitutional law that eventually led to the Statute of Westminster, concurred in Smuts' view. 18 During his long years after 1919 as Prime Minister of South Africa, Smuts did not have to deal in any other than a minor way with the question of international intervention in South West Africa. Had he lived to do so perhaps he would have taken the same point of view that he did during the Paris Peace Conference: 'In this great business South-West Africa is as dust in the balance compared to the burdens now hanging over the civilized world.'59 1 2 November 1914. 2 1 June 1915. 3 2 June 1915. 4 See the minutes in CO 551/65 (50785), Public Record Office, London The Agreement was published in the Leader and other newspapers on 26 October. 5 Quoted in the Rand Daily Mail, 21 December 1914. Botha's statement was optimistic. For the tension between the two communities see especially W. K. Hancock, Smuts: Volume I, The Sanguine Years, 1870-1919 (Cambridge 1962), Chap. 18. The most recent scholarly work on the rebellion is by T. R. H. Davenport, 'The South African Rebellion,' English Historical Review, lxxviii (January 1963), 73-94. 6 Military operations against the German colony had commenced in September, but had been interrupted by the rebellion. 7 13 May 1915. 8 21 May 1915. 9 The military operations may be followed in the Smuts 'Union Papers', Pretoria, and in the CO 571 series. The official account is Union of South Africa and the Great War, 1914-1918 (Pretoria, 1924).

GENESIS: FROM CONQUEST TO MANDATE 10 Queenstown Daily Representative and Free Press, 20 May 1915. 11 10 July 1915. 12 Shipping World, 20 March 1917. 13 Western Morning News, 20 March 1917. 14 Daily Mail, 9 September 1916. 15 Quoted in The Star, 25 March 1916. 16 Daily News, 12 February 1916. 17 On the larger question of why Smuts believed the British were upholders of the principle of liberty, see Hancock. Smuts, esp. pp. 215-16. 18 Quoted in David Lloyd George, War Memoirs, I, 910. 19 At a banquet given in his honour by both Houses of Parliament on 15 May 1917. W. K. Hancock and Jean van der Poel, eds., Selection from the Smuts Papers 4 Vols. (Cambridge, 1966) I1, 509. 20 'Committee of the Imperial War Cabinet on Territorial Desiderata,' Secret, 17 April 1917, CAB 21/77, Public Record Office, London. 21 Ibid., 28 April 1917. 22 17 January 1917. 23 Quoted in the Morning Post, 13 March 1917. 24 For the development of this idea see Henry R. Winkler, The League of Nations Movement in Great Britain (New Brunswick, N.J., 1952), Chap. 8. 25 London, 1917. 26 Harris to Sir Harry Johnston, 17 September 1917, Papers of the AntiSlavery and Aborigines Protection Society, Rhodes House, Oxford. 27 Buxton to Long, Secret telegram, 10 January 1918, CAB 24/66. See also CO 537/1017. 28 See especially British Parliamentary Papers, Cd. 8371, 'Papers Relating to Certain Trials in German South West Africa', vol. xx, 1916; Cd. 8306, 'German Atrocities and Breaches of the Rules of War, in Africa', vol. xx, 1916; Cd. 9146, 'Report on the Natives of South West Africa and their Treatment by Germany,' vol. xvii, 1918 Cd. 9210, 'Correspondence relating to the Wishes of the Natives of the German Colonies as to their Future Government,' vol. xliii, 1921. 29 Smuts' speech was reported in The Times and other newspapers on 29 January 1918. 30 'The German colonies at the Peace Conference', 11 July 1918, Smuts Papers, Box G., no. 2A, Cape Town University. I am indebted to Sir 84

THE ORIGINS OF THE 'SACRED TRUST' Keith Hancock and the Smuts Trustees for allowing me to study these papers. The Public Record Office classification is CAB 29/1. 31 Ibid. 32 Eastern Committee Minutes, Secret, 2 December 1918; see also Smuts pamphlet, The League of Nations: A Practical Suggestion (London, 1918) 33 Smuts to Lloyd George, 14 January 1919, Smuts Papers, vol. 101, no. 64. 34 Memorandum by Smuts on the League of Nations, War Cabinet Paper, Pp. 44. 35 Smuts to M. C. GUllet, 25 January 1919, Smuts Papers, vol. 22, no. 200, Selections from the Smuts Papers, IV, 55. 36 Ibid., IV 899. 37 Morning Post, 31 January 1919. 38 Smuts to Long (copy), 28 November 1918, Smuts Papers, vol. 101, no. 49. 39 Foreign Relations of the United States: The Paris Peace Conference, I1, pp. 719-20. 40 Ibid. pp. 722-23. 41 See George Curry, 'Woodrow Wilson, , and the Versailles Settlement,' American Historical Review, LXVI (July 1961), 968-86. 42 Foreign Relations III, pp. 740-42. 43 Minutes of the British Empire Delegation, 4, Secret, 27 January 1919, CAB 29/28. 44 Foreign Relations, III, pp. 763-65. 45 Minutes of the British Empire Delegation, 6, Secret, 29 January 1919, CAB 29/28. 46 This is the version given by Hughes' biographer, L. F. Fitzhardinge, in an unpublished typescript, 'W. M. Hughes and the , 1919.' 47 Foreign Relations, III, pp. 801-02. 48 In a letter in Common Sense, 5 March, 1919. 49 30 January 1919. 50 3 February 1919. 51 8 February 1919. 52 6 February 1919.

GENESIS: FROM CONQUEST TO MANDATE 53 30 January 1919. 54 See Robert Lansing, The Peace Negotiations: A Personal Narrative (Boston, 1921). 55 Memorandum by Milner on Mandates, Secret, 8 March 1919, CAB 29/1. 56 Buxton (transmitting message from Smuts) to Milner, Private and personal telegram, 15 November 1919, CAB 24/94. 57 'Mandate for German South-West Africa' (Cmd. 1204), Accounts and Papers, 1921, xliii, 757-59. 58 The legal adviser to the New Zealand Government remarked: 'I am bound to say . . . that such a view of the matter seems to me to be in harmony with the national ambitions of South Africa rather than with any sound application or development of the established constitutional principles of the Government of the Empire, and I note its acceptance withregret as it will probably lead in the future to constitutional and international embarrassments.' Memorandum by Sir John W. Salnond, 11 February 1920, Wellington Archives, Ex. 67/12/2. In this connection see Mary Boyd, 'New Zealand's Attitude to Dominion Status, 1919-1921, Journal of Commonwealth Political Studies, III (March 1965), 64-70. 59 Smuts to Lloyd George, 4 , Smuts papers, vol. 101, no. 99.

Blacks to the Wall by Robert L. Bradford, Chairman, Department of Political Science, Susquehanna University, U.S.A. In 1930 Professor Quincy Wright, the brilliant international law expert, concluded his authoritative study of the mandate system with the statement that in South West Africa, 'The mandatory's policy appear(ed) to be devoted to white rather than native interests.'" In that same year, in direct reference to the natives of South West Africa, Commissioner Rappard of the Permanent Mandates Commission lamented that 'on every occasion in the past when whites and blacks had come into contact in territories equally inhabitable by both races, the blacks had gone to the wall.'2 While Rappard could have had other mandatory or colonial powers in mind, the context in which the statement was made indicated that he was referring specifically to conditions in South West Africa. One cannot complete a reading of the six hundred pages of Mandates Commission minutes devoted to South West African affairs without concluding that, in the eyes of the Commission, the Union of South Africa did not fulfil her mandate responsibilities to the extent that she, as an advanced and resourceful civilized nation, could have done or should have done. The Portuguese nationals on

GENESIS: FROM CONQUEST TO MANDATE the Mandates Commission were fairly consistent in their support of and acclaim for South Africa's record as a mandatory power, and occasionally, Union policies were also acclaimed by the Commission's French and German nationals. Otherwise, it can be said that the Mandates Commission agreed with Mr Rappard's analysis that in South West Africa 'the blacks had gone to the wall' and, therefore, that the Union of South Africa was derelict in some respects in fulfilment of her international obligations. An aura of malcontent and impatience with the behaviour of the South African Government toward its African wards permeated Commission sessions since 1923 when the Union, in blunt and callous terms, announced that 'nothing special had been done' to revive the decimated Bondelswart Hottentots. Not even the Union's generally favourable record in fulfilling the specific enumerated obligations of the Covenant - the prohibition of the slave trade, arms traffic, liquor traffic, military fortifications and guarantee of freedom of worship - could dispel the uneasiness of the Mandates Commission. Since it was in the self-interest of the Union Government to fulfil these specific obligations, since these obligations encumbered the Union Government with no more duties than those it had already set down in law for itself in its own Union territory, and since the specific obligations involved little more than continuing to enforce or enforcing more thoroughly the laws and practices of the Germans before them, with which the Union was in complete sympathy, the Union of South Africa would have fulfilled the specific enumerated obligations even in the absence of them as international mandate obligations. What was there in South African policy towards its African wards in South West Africa that constituted the basis of the discontent which the author has deduced from Commission records and that apparently led the Commission to withhold extensive praise for the Union's fulfilment of the specific mandate obligations and to express strong dissatisfaction with the Union's failure to 'promote to the utmost the material and moral well-being and the social progress' of her native wards for whom, all parties acknowledged, the mandate system had been established? The underlying factor of Union policy which so consistently disquieted the Mandates Commission and led it to imply strongly on numerous occasions that the 'spirit' of the mandate was not being fulfilled, was the similarity between the Union's attitude toward the Africans with that of the German atti-

BLACKS TO THE WALL tude before 1914 -an outlook which viewed the Africans as inhuman, impersonal, statistical labour units rather than as individual, worthy objects of the vaunted 'sacred trust'. When Commissioner Rappard asserted in 1930 that the mandate system represented 'a kind of protest' against colonial practices that had preceded it, he was not expressing a viewpoint exclusive to the Mandates Commission. Others before him said much the same thing. For example, General Smuts had claimed in 1917 and at the Peace Conference that Germany's maladministration rendered 'preposterous' any suggestion that South West Africa be returned to Germany.3 In the light of such assertions, the Mandates Commission appeared distressed that the Union Government sanctioned and continued many practices of the German administration which had previously been denounced. For example, Germany created the 'Police Zone' in 1911 - that area comprising the lower three-quarters of South West Africa directly administered by government officials - and the Union carried over the German law through Proclamation 15 of 1919. The twelve administrative districts within the Police Zone in German times were increased to seventeen during Union administration, but many districts retained their original German boundaries. Germany maintained virtually no presence in or other areas beyond the northern Police Zone boundary; the Union, represented by three native affairs officers during its administration, likewise undertook a minimum of administrative responsibilities in South West Africa and, since the system was in harmony with South Africa's policy towards Africans in the Union, the Union retained it and expanded it during the mandate period. Germany left the responsibility for native education entirely to the missions, aided by small government subsidies; the Union of South Africa continued this same pattern until 1935, when it established one government school for Africans in the Aminius Reserve. The German law forbidding the native to own private land was carried over into the South African administration. Under both the Germans and the South Africans, Police Zone natives paid dog taxes. Compulsory branding of cattle was required by the Germans; the Union carried over the requirement to the mandate period until 1923. In German times all Africans over the age of seven had to carry passes; in Union times, males over the age of fourteen had to carry passes. German authorities distributed Africans among the farms, mines and railroads where their

GENESIS: FROM CONQUEST TO MANDATE labour was needed; the South Africans did the same through an ostensibly private system of recruitment. Africans sentenced to prison terms by German courts were parcelled out as labourers to private and public employers; the Union continued the practice. Africans in German times were subject to arrest for offences such as 'laziness', 'insolence', and 'disobedience'; the Union continued the practice. Under German administration, any 'native' without visible means of support was punished as a vagrant;4 the South West African Administrator confessed in 1924 that the practice had been retained under Union Administration.5 Extensive powers of 'arrest' were given to all white employers by both German and Union authorities. In German times, police officers performed a variety of military and 'purely technical administrative duties'; under the mandate, South West African police continued to perform a host of non-police functions.6 Finally, poor medical, sanitary, dietary and housing conditions at the German-owned mines, which apparently originated in German times and which resulted in high native mortality rates, still were not corrected by the time the League review of the Union's record came to an end in 1939. In 1926 Commissioner Lugard asked a Union representative pointblank, 'How many of the former German laws were still in operation?'7 However, the Union Government seemed averse to associating so many aspects of her native policy with former 'discredited German practices. Only twenty-two German laws were acknowledged in the Annual Report for 1926 (paras. 96-97) to be in force in South West Africa. Most dealt with mining, diamond taxes, land taxes, and agricultural pests - matters which were of direct concern only to the European inhabitants. One Union official had been willing to admit, however, upon reflecting on the Africans' expectation of receiving their land back after the Germans were driven out, that 'They (the Africans) soon realised that conditions would remain practically the same . . . as they were in German times.'8 Indeed, conditions did remain 'practically the same'. The Union's outlook with respect to native affairs, so similar to that of the Germans before 1914, manifested itself in the ever-prevalent attitude of the white population, which found expression in the mandatory power's policies - viz., that the 'natives existed chiefly

BLACKS TO THE WALL for the purpose of labour for the whites.'9 Or, as another author expressed it, the white of South West Africa saw their land as 'a European country - with native appendages'. o The number of pages of the Union's Annual Report devoted to European as opposed to non-European affairs attested to the Union's objects of principal concern. The number of times that Union representatives and Annual Reports complained about the severe shortage of native labour indicated the type of spectacles through which the Union looked at native affairs and mandate obligations. The Annual Report for 1920 (p. 13) advised that, 'The native question . . . is synonymous with the Labour question.' The Annual Report for 1921 (p. 13) stressed that, 'The native question is the land question.' The native question was never simply 'the native question'. The African was never regarded, even in principle, as an end in himself; he was never seen to possess worthiness as an individual human. Consequently he never was, in reality, treated as the object of a 'sacred trust'. He was treated primarily as an object to be used as needed for the economic development of the European community. He was primarily a 'labour unit' - that very term is devoid of personality. The statements of the Union itself admit as much. The dog tax on the Bondelswarts was 'designed partly to compel them (the Africans) to come out to work;' during the mandate period Africans existed 'principally or solely as a labour supply for adjacent farms;'I" all European farmers felt 'that the natives were there chiefly as labourers for themselves;"2 healthy native children were a blessing because they 'represent(ed) potential labourers of the future;"4 the Union intimated that improvements in public sanitation were undertaken for the purpose of increasing the native population, thereby alleviating the labour shortage;'5 the Union sought to deny the Africans access to liquor and fermented beer because their consumption encouraged 'brawls' and 'violent headache(s)' that made the Africans totally unfit for work;16 the well-being of the Africans was of interest to the Union because 'the happier the native was the better he worked;'7 the reserves' Tribal Trust Funds and the Administration's insistence that the economic development of the reserves could be accomplished only through expenditures of sums from those Funds were 'inducement(s) to them (the Africans) to go out and work . . .;"11 the Union was interested in the Africans in the urban areas to the extent that their number did not surpass 'the bare requirements of urban employers;'19 upon the insistence of

GENESIS: FROM CONQUEST TO MANDATE the Union, missions stressed industrial subjects in their schools because such subjects 'improved the native's working capacity;'20 a 'practical' curriculum for the Africans was more valuable than a 'bookish' curriculum2' because natives had to be shown 'that there was dignity in labour;' in fact, prior to any type of education, Africans had to be taught 'how to work;'22 penalties for crimes most likely to be committed by Africans in the employ of European masters were stiffened to provide more prison labourers;23 the water supply and storage facilities on the reserves were improved so that every one of the native 'shirkers' under thirty-five years of age on the reserves would be free to leave and seek employment under Europeans.24 In addition, the Union Government seemed to curb the arms traffic, to maintain the old German pass requirement, and to refuse to spend public treasury funds on the economic development of the reserves in hopes that such steps might also tend to increase the ever-critical labour supply. Few actions concerning native affairs appeared to have been undertaken strictly for the purpose or value of uplifting the Africans, who apparently, in the eyes of the South African Government, had no value apart from their utility as labourers. Indeed, most Union policies appeared to have been based upon the assumption that the natives' value was as a labour unit; most policies appeared to have been adopted for the sake of affecting what constituted the territory's principal economic problem apart from the vicissitudes of nature - the African labour shortage. To alleviate the labour shortage, African convicts were hired out to 'suitable employers;',25 to alleviate the labour shortage, the 'Vagrancy Act' was implemented 'when a native (was) dilatory in finding employment';26 to alleviate the labour shortage, Africans 'free from taxation of any kind' found themselves with new taxes to pay, taxes which would 'induc(e) labourers to come out (to work);' 7 to alleviate the labour shortage, 'grazing fees . . . compelled (Africans) to obtain cash to meet the fees . . . by working . . .;,28 to alleviate the labour shortage, the Union resorted to formal recruitment, 'for they (i.e. Africans) would not come out of their own accord;'29 to alleviate the labour shortage, missions were required (until 1928; thereafter, 'encouraged') to urge 'all natives under their influence to seek employment (with Europeans) in South West Africa;'30 to alleviate the labour shortage, Welfare Officers in the Native Affairs Department of the South West Africa Administration were 'posted,

BLACKS TO THE WALL on the principal reserves 'to see that there was no loafing in these reserves;' indeed, the reserves were not set aside to enable Africans 'to lead a lazy life',32 but rather for 'native servants out at work to place their stock . . . and collect there the old and the infirm';33 to alleviate the labour shortage, the Administration did not allow 'ablebodied men' to remain on the reserves.34 As they concerned the South West African natives, the Mandatory Power's administration of justice, its education policy, its health policy, its land policy, its attitude toward missions, its attitude toward the prohibition of arms and liquor and toward native affairs in general, all revolved around the basic assumption (which apparently underlined German administration as well) that the Africans' existence had only one important purpose - to serve white interests. It is obvious that this assumption constituted, in fact, the foundation of Union native policy in her mandated territory and was repulsive to most Mandates Commissioners. The latter body decried the fact that this assumption was reflected in the outlook of South West African whites and in the South West Africa Administration's policy. An interesting report which exuded more contempt and cynicism for the Africans than any of the Union's annual accounts was apparently never seen by the Mandates Commission. This was the report of a commission appointed by the South West African Legislative Assembly in 1927 to inquire into the number of Africans on each reserve, the number of males able to work, the number actually absent in search of work, the number which should be outside the reserves at work, and methods to prevent them 'from lounging about in the reserves and doing nothing'. The two commission members, Afrikaners named Colonel B. J. Smit and L. Taljaard, reflected the opinion of the majority of South West African whites when they concluded that 'the reserves should be a home for the native where he can spend his old age in peace and rest'. They found that there were 'too many serviceable natives in the reserves'; while two-thirds of all adult native males should be working, only 36% were actually doing so. They recommended that the natives' pasturage fees in the reserves be increased to force them 'to go and seek betterment outside'. They recommended that only men over fifty-five years of age be 'admitted' to the reserves, with magistrates to determine who was over fifty-five if proof of age were unavailable. These policies, inter alia, would 'make it impossible for natives to idle about in the reserves doing nothing'.35

GENESIS: FROM CONQUEST TO MANDATE Nowhere else in the League's records was the dichotomy between the Union's attitude toward her European subjects on the one hand, and her attitude toward her African wards on the other, more sharply brought home to the Mandates Commission than in the episode of the Angola Boers and the Aminius Reserve Hereros.36 In 1925, 2,091 Boers - some 373 families - living in Angola petitioned the Union Government for permission to resettle in either South West Africa or in South Africa. Originally, these pastoralist Boers had trekked from the Transvaal to the Kaokoveld area of South West Africa in 1873-1877, but had moved up into southern Angola in 1881 after the found it could not render enough assistance to satisfy them fully. Having never established good relations with the Portuguese, the Boers' accumulated grievances led them to their petition of 1925. After some initial hesitation because of the possibility of Portuguese hostility to the resettlement, Prime Minister Herzog acquiesced to the pleas of a second Boer deputation in 1928 and permitted their relocation in South West Africa. Only the ex-German community in South West Africa objected. The Union Government immediately made available to the South West Africa Administration the sum of £350,000 to pay for the Boers' resettlement. The Administration halted all other land settlement programmes in 1928 so it could give exclusive attention to the resettlement of the Boers on about 4,100 square miles of uninhabited crown lands near Gobabis, , Gibeon and . It used the £350,000 grant to rescue the Boers from the swollen banks of the malaria-ridden Cunene River (to which they had streamed en masse upon hearing that free cattle, oxen, and land would be allotted to them), to drill new wells on the land on which they were to be resettled, to provide them with new cattle and oxen (free of disease), to transport them to their resettlement areas, and to provide individual advances of £800 to £1,000 to construct a home. A separate agency within the South West Africa Administration looked after all their requirements. A medical officer and a nurse set up a hospital at the Boers' camp at Gamkarab from which they were to move out to their allotted areas. The Boers' medical expenses were paid from the £350,000 Angola Settlement Loan Fund. Itinerant schools (six in 1929, 15 in 1930) accompanied the Boers until they were settled; the cost of educating 500 Boer children in such a manner was £24,959.

BLACKS TO THE WALL When a drought hit the Boers in 1930, causing severe losses of cattle and farm produce, the Administration 'did all in its power to assist the settlers with supplies of bonemeal, lime phosphates, salt, vaccines, and veterinary advice'.37 Loans totalling £36,604 were made available in 1931. In fact, the Union of South Africa continued to accept financial responsibility for the Boers until 1938. During the ten years between 1928 and 1938, the Union Government extended non-repayable grants totalling £539,000 to the South West Africa Administration specifically for aid to the Boers. The South West Africa Administration offered the money to the Boers in the form of grants and loans. Taking into account the recovered loans which were loaned out again, the Administration made available a total of £674,012 to the Boers by 1938. In spite of drought, depression and 'wanderlust' - 82 of the 373 Boer families 'drifted away' from their settlement sites by 1937the South West African Administrator remained sympathetic and guardedly optimistic about their presence in and value to South West Africa. 'The immigrants as a whole make a most favourable impression; they are people who have never been spoiled by the towns, they have retained their simplicity, dignity, natural courtesy and throughout their purity of race and language, and I have no doubt that the majority of them will succeed.'38 The sympathetic understanding and generous behaviour of the South West Africa Administration and Union Government toward the Angola Boers should be contrasted with the attitude and policy of these same governments toward the Hereros of the Aminius Reserve. In June of 1933, the Hereros of the rectangular Aminius Reserve near the Bechuanaland border sent a deputation of thirty-five men to Windhoek to make representations in regard to their welfare. The deputation made three major requests - enlargement of their reserve, which they claimed was both unsuitable and inadequate, substitution of a poll tax in place of the required grazing fee, and construction of government schools in their reserve to replace the mission ones. The deputation presented its requests to the Secretary of South West Africa (i.e. the Chief Native Affairs Office) because

GENESIS: FROM CONQUEST TO MANDATE the Administrator was said to be unaware of its presence in Windhoek, and was very busy, besides. However, Administrator Conradie reacted promptly. He visited the Aminius Reserve in November, 1933, where he delivered his reply to the Hereros in person. He expressed pleasure that the natives had brought their grievances to him rather than running 'to outsiders who may give them wrong counsel or advice', but admitted to being 'rather astonished' by their requests. With regard to the claim of the alleged 'unsuitability and inadequacy' of their reserve, Conradie reminded the Hereros that it was the Germans who had broken them and taken their land and possessions; he rebuked them for expecting to receive all this back especially their tribal land - from the South Africans: 'This could not have been done, even if my Government had wished it. You cannot put the clock back. Much of the Herero lands had already been sold to German farmers and there were large numbers of Union people who had come up and purchased land (italics mine). . . . To me it is quite clear that the Herero people have not realized that the old days have passed away.' He reminded the Hereros that the white man did not seize the land of his enemies without compensation, and that, while the Hereros' land was not the best in the country, it was 'the most suitable that could be obtained . . .' Conradie claimed that the Angola Boers' land was not much better. He rebuked the Herero for seeking permission to trek to supposedly better territory: 'But let me tell you, all these places are much the same unless the people living on them work hard to develop them. . . . A lot of this country is I know not good and a great deal more will require a lot of money spent on it making roads, sinking boreholes or making dams before people can live there. This will have to come out of the Trust Funds and as I have already said, I cannot ask the white people to pay for the natives' debts. . . You will, therefore, have to wait until the Trust Funds have money in them. . . . (There could be no progress in the Herero reserves) unless the native people try to help themselves and unless you try to work hard and build up your people and yourselves, following and adopting the methods of the white people.

BLACKS TO THE WALL . . . The only hope of progress is by work, by digging wells, by making dams to catch water and save it for years of drought, by preserving the , by fencing, preventing overstocking and the trampling out of land and seeing that too much stock is not allowed on it. . . . Now I think the Herero people have still much to learn in regard to these matters. . . . You . . . have a big enough country . . . if you can only develop it and improve it as you ought to. For this, however, there is only one solution - to work and earn money. The work there is no difficulty about if the young men and children are properly taught by their parents.' Conradie castigated the Aminius Hereros for having requested relief food, but then refusing it when the Administration offered it with the proviso 'that the recipients did some work in return for it in the Reserves, such as improving the roads.' He announced, 'If they (the recipients) will not work . . . the food will be given to Europeans and others who are really in want.' With respect to the Hereros' taxation complaint, Conradie rejected their request that a poll tax be substituted for the grazing fee. The poll tax would shift the burden from the shoulders of the wealthier Africans (who possessed more cattle and therefore paid higher grazing taxes) on to African males in general. This would encourage all natives to accumulate larger herds of stock, adding to overgrazing difficulties and tempting more natives to remain on the reserves rather than going out to work for Europeans. Conradie announced that while there would be no change in the tax system, £5,556 in tax arrears owed by the Aminius Hereros would be written off. 'I must warn you, however, that this cannot be repeated and in future you must pay your fees regularly or else steps will be taken against defaulters. . .. 'To get money to pay the grazing fees your young people must, of course, go out to work amongst the Europeans and you must sell your surplus stock.' In connection with the Hereros' request for higher standards of education and the establishment of government schools in their

GENESIS: FROM CONQUEST TO MANDATE reserves, Conradie told them of his pleasure in hearing of their new interest in education, it being 'high time' that they expressed it; however, 'I cannot tax the Europeans to provide (government) schools for the natives. The finances of the country are in a very unsatisfactory condition and if I open a native school here I shall have to open them all over the country. You will therefore have to find the funds yourselves ... 'I would again urge you, as soon as conditions improve to see that the dues are paid to the Trust Fund and I will see as soon as conditions allow that you have a Government school at Aminius.'39 Even assuming that a lecture on 'hard work' was more necessary for the Aminius Hereros than for the Angola Boers (for whom it was already a part of their value system), the Administration's attitude and responses to the Hereros were amazing. In his response to each request, the Administrator consistently emphasized the need to leave the reserves and 'to work amongst the Europeans'. Once again it can be seen that, in the eyes of the white authorities, all questions of native affairs revolved around the singularly narrow matter of the demand for African labour. In this case, it can be seen how the authorities' native land policy, tax policy, and education policy were predicated upon the African labour shortage. Under the Covenant and Mandate Agreement, South Africa had assumed no responsibility for the Angola Boers. None the less, their plight and discontent, which apparently was as much of their own making as it was of the Portuguese authorities, received sympathetic understanding and ten years of Union aid in the amount of £674,012. Not this much money had been spent on the entire African population of 262,000 for all purposes in the same ten-year period (1928-1938).4o The Mandates Commission never asked that expenditures on Europeans and Africans be equalized or even allocated in proportion to population. But the ten- year expenditure of £674,012 on 2,091 Angola Boers as compared to £566,544 on 262,000 South West African natives was undoubtedly one of the factors in Commissioner Rappard's mind when he remarked that

BLACKS TO THE WALL 'The Mandates Commission had no cause to be gratified by this generous treatment of the white population since it was concerned with the natives who were placed under its care.' Commissioner Orts supported him, claiming that the Union's view that the Africans deserved no greater expenditures beyond what they themselves contributed in revenue 'lost sight of the trust imposed on the Administration'.41 The Mandates Commission appeared disconcerted that the resettlement of the Angola Boers was evoking the singularly generous response from the Union Government that the League Covenant had reserved for the African wards.42 It is quite clear that South Africa did not view the mandate system as having been established principally for the Africans, the vilification of German administration by General Smuts and the statements of Union officials notwithstanding. For South Africa, the mandate system was clearly an expedient and acceptable compromise between the Dominion annexationists and President Wilson, plastered over with moralistic references to the alleged need and desire to replace odious German colonial practices. The Union's Annual Reports and the voluminous minutes of the Mandates Commission48 make clear that the Union of South Africa saw its mandated territory as 'her little bit more'" - a territory in which to settle more of her citizens and a territory to develop for those citizens 'for all time' (in Smuts' own words),45 with the Africans supplying the labour and supposedly benefitting thereby.46 The present writer is of the opinion that the Mandates Commission, were it asked by Liberia and Ethiopia in 1939 to render a judgement upon the fulfilment of mandate obligations, would have declared that the Union of South Africa was assuredly remiss concerning the fulfilment of the spirit of the Covenant because the Union's general attitude toward native affairs was so permeated with the obsession for devising labour-inducement schemes for Africans that the Union was incapable of viewing the sacred trust as a value in its own right. While the operation of the mandate system in general has been rightly regarded as one of the laudable accomplishments of the League of Nations, the South West African mandate must be excluded from that assessment. All indications are that South Africa's intentions and record fell short, in significant respects, of the fulfilment of the high ideals of the sacred trust. From the inception of the

GENESIS: FROM CONQUEST TO MANDATE mandate, there is little to indicate that South Africa intended to have her mandate wards achieve any ideals or aspirations or position in life apart from the ideals or aspirations laid down for them by the European authorities in Windhoek and in the Union of South Africa. Perhaps no statement better indicates the degree to which the Union intended to exploit her wards for her own needs than a statement by Jacobus S. Smit, High Commissioner in London, in 1925: 'It would be a sad day for Africa if the native were encouraged to look beyond the authorities in South Africa for civilisation and support.'47 In 1966 Africans are looking beyond South Africa for support, for they categorically reject South Africa's style of 'civilisation'. This is a sad day only for the Republic of South Africa. I Quincy Wright, Mandates under the League of Nations (Chicago: University of Chicago Press, 1930), p. 557. 2 LN, PMC, Min., XVIII, 14th Mtg. June 27, 1930, p. 136. 3 The Times (London), March 13, 1917, 6: 5. 4 Ruth First, South West Africa (Baltimore: Penguin Books, 1963), p. 38. 5 LN, PMC, Min., IV, 7th Mtg., June 27, 1924, p. 64. 6 See Valentin in Cambridge History of the British Empire (New York: Macmillan Co., 1936), VIII, p. 702. 7 LN, PMC, Min., IX, 6th Mtg., June 10, 1926, p. 45 and Annex 9, p..220. 8 LN, PMC, Min., III, 19th Mtg., August 1, 1923, p. 129. 9 Leo Marquard, The Peoples and Policies of South Africa, 3rd ed., (London: Oxford University Press, 1962), p. 253. 10 Negley Farson, Behind God's Back (London: Victor Gollancz, 1940), p. 29. 11 South Africa, Commission on the Rebellion of the Bondelawarts, Report of the Commission Appointed to Enquire into the Rebellion of the Bondelzwarts, U.G. 16-'23, (Cape Town: Cape Times Ltd., Government Printers, 1923), p. 30. 12 LN, PMC, Min., III, 18th Mtg., July 31, 1923, p. 120. 100

BLACKS TO THE WALL 13 LN, PMC, Min., III, 19th Mtg. August 1, 1923, p. 132. 14 South Africa, Territory of South-West Africa, Report of the Administrator for the Year 1921, U.G. 32-'22, (Pretoria: The Government Printing and Stationary Office, 1922), p. 13. (Hereinafter such annual Union reports to the League will be referred to as 'Annual Reports for (year)). 15 LN, PMC, Min., IV, 15th Mtg., July 2, 1924, p. 117. 16 Annual Report for 1930, para. 950. 17 LN, PMC, Min., IV, 15th Mtg., July 2, 1924, p. 114. 18 Annual Report for 1937, para. 305. 19 LN, PMC, Min., XXXI, 18th Mtg., June 12, 1937, p. 139. See also Annual Reports for 1924, para. 98; 1932, para. 333; 1938, para. 729. 20 LN, PMC, Min., XXVI, 8th Mtg., November, 1934, p. 60. 21 Annual Reports for 1925, p. 51, 1923, p. 34; 1926, para. 136; 1929, paras. 333-334; 1937, para. 392 and LN, PMC, Min., XI, 12th Mtg., June 27, 1927, p. 102 and XV, 9th Mtg., July 5, 1929, p. 72. 22 LN, PMC, Min., VI, 8th Mtg., June 30, 1925, p. 74. 23 LN, PMC, Min., XIV, 11th Mtg., November 1, 1928, p. 105. 24 South West Africa Administration, Native Reserves Commission, Report of the Native Reserves Commission (L.A. 2-'28) in South West Africa. Legislative Assembly, Votes and Proceedings of the Legislative Assembly, third session, First Assembly, April 13, 1929-May 11, 1928 (Windhoek: John Meinert Ltd., Government Printers, 1929), pp. i-iii. 25 LN, PMC, Min., III, 18th Mtg., July 31, 1923, p. 112. 26 Union of South Africa, Office of Census and Statistics, Official Year Book of the Union, 1930-1939 (Pretoria: The Government Printing and Stationary Officer, 1932), p. 906. 27 Annual Report for 1926, paras. 45 and 52. 28 LN, PMC, Min., XXXIV, 9th Mtg., June 13, 1938, p. 86. 29 LN, PMC, Min., IX, 5th Mtg., June 10, 1926, p. 38. 30 Annual Report for 1925, pp. 107-108. 31 LN, PMC, Min., XXXIV, 9th Mtg., June 13, 1938, p. 85. 32 LN, PMC, Min., XVIII, 14th Mtg., June 27, 1930, p. 140. 33 Annual Report for 1920, p. 13. 34 Annual Report for 1936, para. 264. See also LN, PMC, Min., XIV, 11 th mtg. November 1, 1928, p. 102 and LN, PMC, Min., III, 1923, Annex 101

GENESIS: FROM CONQUEST TO MANDATE 5, 'Conditions of Life in South West African Reserves: Note by Major Manning', p. 178. 35 See footnote 24 above. 36 The history of the Angola Boers' resettlement in South West Africa and the plight of the Aminius Reserve are to be found in a wide variety of sources published between 1928 and 1938; among them are the Union's Annual Reports, the Official Yearbook of the Union, Debates in the Union House of Assembly and Minutes of the PMC. See also , South West Africa in Early Times, trans. and ed. by Cyril G. Hall, (London: Oxford University Press, 1938), pp. 418-423. 37 Annual Report for 1930, para. 197. 38 Annual Report for 1928, para 656. 39 All of the quotations are from the Annual Report for 1933, paras. 179-186. One small government school for the Aminius Reserve was constructed in 1935. The cost of the land and of the construction was met by monies from the Tribal Trust Fund (see Annual Reports for 1934 paras. 252 and 433, and 1935, para. 324). 40 In 1928-1938, the South West Africa Administration spent from its public funds (raised locally) £566,544 on 'native affairs'. 41 LN, PMC, Min., XXXI, 16th mtg. June 11, 1937, p. 126. 42 See LN, PMC, Min., XIV, 9th Mtg., October 31, 1928, pp. 85, 86, 89-90 and 10th Mtg., November 1, 1928, pp. 93-95 and 11 th Mtg., p. 111 and Annex 16, p. 275; XV, 8th Mtg., July 4, 1929, pp. 66, 72; XVIII, 15th Mtg., June 28, 1930, p. 142; XX, 7th Mtg., June 12, 1931, p. 63 and Annex 18, p. 233; XXII, 3rd Mtg., November 4, 1932, pp. 31-32; XXIX, 15th Mtg., June 6, 1936, p. 136. 43 The discussion of the mandated territory of South West Africa takes up more pages of the PMC Minutes than does the discussion of any other 'C' or 'B' mandated territory. 44 The caption under a cartoon in the Cape Times, July 10, 1915, 9:4-7. 45 Farson, op. cit., p. 116. 46 LN, PMC, Min., XXXI, 16th Mtg., June 11, 1937, p. 127. 47 LN, PMC, Min., VI, 7th Mtg., June 20, 1925, p. 60.

3. Inside South West Africa Techniques of Domination: South Africa's Colonialism by H. J. Simons, Senior Simon Fellow, Manchester University: Associate Professor in Comparative African Government and Law, University of Cape Town. South Africans have had a varied experience of colonial rule since the beginnings of white settlement. Their colonialism passed through important changes in both form and content; and these affected the racial groups that make up the population in very different ways. In the first place, when the Cape was a colony of Holland and, later, of Britain, all the inhabitants were subjects of an external, imperial power. Slavery, racial discrimination, and wars against the indigenous peoples left an indelible impression on the society. The foundations of a racially stratified, segregated and caste-like social order were laid during this period. A new phase opened in the second half of the nineteenth century. Independent Afrikaner republics came into being north of the . was bestowed on the Cape and . The settlers acquired the powers of a colonial authority. Aided by British troops, they extended their rule over peasant communities in most of the south of the Zambesi. The defeat of the republics opened the way to unification. A united South Africa achieved dominion status. The withdrawal of British

INSIDE SOUTH WEST AFRICA suzerainty eliminated the remaining vestiges of external political control. , Bechuanaland and Swaziland continue to be separate enclaves in South Africa's sphere of influence. They are constitutionally independent. But they are economic dependencies, client states, of South Africa, and are no more viable, as separate entities, than the designated 'Bantu Homelands' within its borders. The de facto incorporation of South West Africa added yet another dimension to South Africa's expanding colonialism. It now spreads beyond its original frontiers, and assumes the privileges, with the burdens, of an imperial authority. The wheel has turned full circle. Once a colony, South Africa has spawned its own brood of client states and dependencies. Three strains can be distinguished in this complex. One is the relationship between the White rulers and persons of African or Asian descent. South West Africa belongs to a separate category, because of its status in international law and the rejection by its indigenous peoples of South Africa's claim to sovereign rights over the territory. Basutoland, Bechuanaland and Swaziland constitute the third variety. Their quasi-independent status under Britain's protection gives them more freedom of choice than is allowed to Africans, Coloured and Indians in South Africa. We usually think of a colony as a distinct territorial and social entity, clearly demarcated, and separated by seas or a great land mass from its imperial metropolis. South Africa's empire, in contrast, forms a continuous tract. The imperial rulers are not spatially separated from their colonial subjects. Africans and whites are closely integrated in a single social organism. The intensity of their relationship obscures the colonial element. But it exists. We can identify it by comparing the social structure with the model of colonial society. Aliens rule. One race dominates another. Political and economic power is concentrated in the master race. Its living and cultural standards are vastly superior. Insurmountable social barriers segregate it from members of the subordinate race - except when used to produce wealth for their masters. A rigid social stratification preserves the physical identity, privileges and powers of the dominant race. , for the most part, support the regime or allow themselves to believe that it is necessary for their survival. They invoke a spurious 'law' of self-preservation to justify discrimi-

TECHNIQUES OF DOMINATION: SOUTH AFRICA'S COLONIALISM nation; and deny the values of the civilization which they claim to defend. Africans share this civilization and form an integral part of the common society. But they are excluded from the basic rights which it professes: self-determination, participation in government, freedom of occupation, movement and organization, equality of opportunity, economic security, the rule of law. Africans, Coloured, Indians and a significant number of White radicals are revolting against the regime. It is a popular revolt, led and supported wholly by South Africans. Among them are peasants and workers, business men, members of the professional and intellectual classes, christians, communists, liberals and nationalists. They represent all the race and colour groups in the population. Their common purpose is to establish a people's government, abolish race discrimination, and achieve the values that the whites claim to uphold. The struggle is not between classes or races. It is a revolt against a deeply entrenched and oppressive colonialism. RULE BY COERCION The holders of power resort to extreme and brutal measures to suppress revolt. Its leaders have been executed, imprisoned, banished or driven into exile. The masses are intimidated by gunfire, jailing, dismissal from employment, and expulsion from the labour centres. Radical political parties have been outlawed; their press has been closed down. A network of secret police and paid informers keep track of radical opponents. A strict censorship operates to prevent the importation, production and circulation of literature dangerous to the regime. There is no calculus for comparing degrees of brutality. South Africa's repressive techniques may be more extreme and ruthless than those employed elsewhere or they may be less so. But they do not differ in kind from the methods used by other colonial administrations to suppress a revolt. The distinguishing mark is a disregard of the sentiments and affections of the subject peoples. They are not the masters, and cannot remove the government from office. Their complaints and efforts to obtain a redress can be discounted in terms of the power structure. A colonial bureaucracy is responsible to its imperial state. When the state is geographically and sociologically detached from the colony, its affairs are rarely major issues in the domestic policies of INSIDE SOUTH WEST AFRICA the metropolis. Elections are seldom won or lost on grounds of events in the colony. If it achieves independence and breaks away, the effects on the imperial social order may be negligible. This detachment, and the relative unimportance of the colony to the possessing country, make it possible for spokesmen of the colonial people to press their claims in the metropolis without fears of reprisal. The writ of bureaucracy does not run in the metropolis. Here it is possible for members of parliament and of the general public to ventilate grievances and expose abuses through the normal channels of communication; and so to put pressure on the government and its agents in the colony. It is this sensitivity to pressure that gives the concept of imperial trusteeship a degree of validity in a democratic society. South Africa's colony consists of the voteless majority. They cannot isolate themselves from their rulers, who have a powerful personal interest in keeping things as they are. The relations between rulers and ruled, between white and Africans, between imperial state and colony, dominate the lives of all South Africans, and constitute the hard core of their politics. Resistance to colonialism strikes at the heart of white supremacy. Movements for national liberation are a revolutionary threat to the state, and are suppressed with force. Rule by coercion is wasteful of goodwill and resources. It provokes counter- violence in a mounting spiral. The burden of holding down a hostile, potentially rebellious population may become intolerable, This stage has not yet been reached in South Africa. But the regime devotes a growing proportion of its budget and manpower to internal security. The end is not in sight. Violence will grow on both sides, if present trends continue, until the whites occupy the position of an occupying army in a conquered territory that has not been subdued. Colonial governments do not depend on force by choice. They would rather deal with a docile, subdued people, who have been schooled to accept a position of permanent inferiority. Racial segregation contributes to this end, by surrounding the white man with mystical taboos. They affirm the myth of his superior intelligence, knowledge and power. An inferior education conditions the African for a subordinate status, and inculcates the servile mentality that ensures his acquiescence in alien rule. To preserve this state of mind, it is necessary to silence the radical

TECHNIQUES OF DOMINATION: SOUTH AFRICA'S COLONIALISM leadership and encourage people to give their allegiance to conservatives, who will collaborate with the administration. The indicated choice for this role is the traditional ruler, the tribal chief and elders. They derive their status, authority and power from the ancient institutions of their race, and wish to preserve them from modern influences. Chiefs and elders are the natural allies of a colonial bureaucracy against the leaders of a non-tribal nationalism. The alliance may break down under the pressure of an anticolonial movement. This breach occurs when the imperial state decides to decolonize, and hands over the powers of government to representatives of the indigenous population. Tribal chiefs, being usually uneducated, identified with regional or sectional interests, and compromised by their role in the colonial bureaucracy, are likely to be considered unsuitable for office in the new government. The choice therefore falls on the so-called modernized lite - the leaders of popular movements for self-rule, who will put national cohesion above tribal parochialism, maintain economic and political ties with the metropolis, and subdue radicals who look to the east for inspiration and aid. Decolonization means that alien rule comes to an end and, with it, racial discrimination in public life. A similar process in South Africa would dismantle the structure of white supremacy, admit Africans and to a share of political power, remove barriers against inter-racial competition, and reduce the disparity of living standards between the racial groups. The parties of the establishment have chosen to reject decolonization. They prefer, instead, to suppress radical movements on the one hand; and, on the other hand, to revive tribalism and underpin tribal leaders under an alleged policy of separate development. The stated aim is to demarcate a number of separate territories in South and South West Africa. Each tract will be occupied exclusively by a distinct ethnic community. The reserved areas or 'Homelands' are to be linked to 'White' South Africa in varying stages of dependence. The inhabitants will exist mainly on wages earned in the 'White' zone by migrants from the 'Homelands'. Their legislatures will be subordinate to the central government in Pretoria and Cape Town. Tribal chiefs will occupy a majority of the seats in the regional legislative assemblies. Apartheid, separate development, homelands or bantustans are variations on a single theme. The government wishes to externalize 107

INSIDE SOUTH WEST AFRICA the colonial element, and project an image of the society in the familiar shape of an imperial centre with satellite dependencies. Being familiar, the image will, it is hoped, prove more acceptable than the brutal realities of an unbending racial dictatorship. There are additional advantages. Bantustans are to provide an outlet for the thwarted ambitions of teachers, lawyers, business men and other potential leaders of dissident political movements. Africans must abandon their claims to a share of the whole country, and confine their aspirations to their particular bantustan. The thrust of a united, national, non-tribal liberation struggle will be arrested, and dissipated in scores of small, tribalized societies, each self-contained politically and detached from the rest. Reinforced tribal authorities are to counteract the appeal of radical leaders; and share the odium of holding down members of the resistance movement who have been expelled from towns and farms in the 'White man's country'. PRETORIA RULES Settlers do not invent new cultures. They can only transfer and adapt their own. South West Africa is an extension of South Africa's social structure. There are differences - in degree of development, living standards, patterns of labour organization; but the similarities are more important. Techniques of domination are the same in both. An all-white voters' roll and legislature, a white monopoly of administrative, clerical and supervisory posts, inferior standards of education, health services and social welfare for the darker man, strict residential and social segregation, a master and servant law, pass laws, riches for the settler and poverty for the African - all South Africa's varieties of discrimination are found here, in an accentuated form. They hold back the advance of the subject peoples, perpetuate the myth of white untouchability, and preserve white supremacy. There may be difficulty in deciding whether the mandated territory is a province, colony or other entity, but its dependent status is not in doubt. Sovereign authority over South West Africa vests in South Africa. It has arrogated full and final powers to legislate for and administer the territory as an integral part of the republic. South West Africa was originally in the position of a crown colony. An Administrator, acting on instructions from Pretoria, exercised legislative and executive functions. African affairs, police, defence and certain other matters were integrated with the corresponding

TECHNIQUES OF DOMINATION: SOUTH AFRICA'S COLONIALISM state departments of South Africa. The territory was administered as a separate entity in other respects. The constitution of 1925 introduced representative government of a sort, but only for the settlers. They elected two-thirds of the members of the legislative assembly, and dominated the executive committee and advisory council. African affairs, police, defence and some other matters were 'reserved' subjects, on which the assembly could not legislate without permission from Pretoria. The legislative and administrative authority in these fields vested in the Administrator, acting with the advisory council and under instructions of the South African government. The effect was the same, whether the directives came from Pretoria or Windhoek. South West Africa received South Africa's legislation concerning the administration of Africans with little variation. African affairs were transferred in 1955 to the Department of Bantu Administration and Development in Pretoria. The move formed part of a general policy, initiated by the present government in 1949, to shift the centre of authority back to South Africa. Settlers lost some of their autonomy, but received as compensation seats in the South African parliament. The indigenous inhabitants remained as unrepresented as before, and were subjected to more direct control from Pretoria. The powers of supreme chief, which had been vested in the administrator, were transferred to the Governor-General, now the State President. This concentration of authority in Pretoria is said to guarantee fair dealing for the African. South Africa claims the role of a benevolent trustee over the majority in South West Africa. The claim is presented as a self-evident reality by the commission of 1962-63 on the affairs of the territory, when it urges that South Africa should take over most of the administration so as to promote the policy of partitioning the territory into ethnic 'homelands'. The commission asserts that: 'it would be more in the "spirit of the mandate", if the initiative for such a programme were to be vested in the Government of the Republic of South Africa rather than in a local government which, in its composition, is merely representative of the local White community which has interests that may in some respects be competitive with those of the non-White groups.'

INSIDE SOUTH WEST AFRICA South African governments have demonstrated their unfitness for this role. Distance does not ensure objectivity. The guardians in Pretoria have the same interests as the settlers, and may be less amenable to pressure by the voteless masses than the administration in Windhoek. It was, said the UN Committee on South West Africa in 1956, a 'step in the wrong direction' to transfer the administrative responsibility to Pretoria. The right direction would be a progressive handing over of power to the African and Coloured people of South West Africa. State President, Minister of Bantu education, Administrator and Chief Bantu Commissioner are levels of authority in a bureaucratic hierarchy. The line of command runs directly from Pretoria through Windhoek to the commissioners and superintendents in reserves and locations throughout the territory. Africans receive instructions, and never give them, except at the bottom of the ladder, where chiefs and headmen carry out the orders of their superiors. Whether issued in Pretoria or Windhoek, the instructions reflect the interests and enforce the policies of the imperial state. South West Africa has been absorbed in South Africa's colonial structure. The assimilation is nowhere as thorough as in the field of 'Bantu Administration'. 'The laws relating to Native Affairs in South West Africa,' reported the secretary of the department in 1956, 'are in the main modelled on corresponding legislation in the Union and have been retained and will be amended appropriately if and when necessary.' The statutes referred to include the Masters and Servants Acts, the Natives (Urban Areas) Act, the Native Administration Act, the Native Affairs Act, the Bantu Labour Act, and the Bantu (Abolition of Passes and Co-ordination of Documents) Act. They are instruments of white supremacy. Africans have protested, defied, and struggled against the legislation for more than half a century. SUPREME CHIEF The Native Administration Proclamation of 1928, as amended by Act 56 of 1954, is a keystone in the system of authoritarian rule. Modelled on South Africa's Native Administration Act of 1928, the proclamation can be traced back to Shepstone's high-handed methods of governing tribal communities in Natal during the second half of the last century. One of the statute's basic elements

TECHNIQUES OF DOMINATION: SOUTH AFRICA'S COLONIALISM is government by proclamation. Another is the institution of the supreme chief. The State President is the supreme chief of all Africans in the republic and South West Africa. He has the rights and powers over them that he possesses under the Natal Code of 1932. He can appoint and remove chiefs, divide or amalgamate tribes, deport and banish tribal groups and individuals. To interpret the scope or examine the exercise of these powers, we must look to the decisions of the South African supreme courts. They have held that the powers are inherent in the office of the supreme chief. The powers are very drastic, said Krause, J., and can be used despotically, since they confer an almost unlimited discretion; but a court can do no more to protect the subject than to interpret the section strictly and scrutinize an order very carefully.I Does the power of removal apply also to urban residents, and other persons who are not members of a tribe? The question was put in an appeal by Mpanza in 1945 against a conviction for refusing to comply with an order to remove from Orlando in Johannesburg to a farm in Ixopo district, Natal. Mpanza, who had led a large squatters' movement in the course of a campaign for African housing, disputed the validity of the order on the ground that he was exempted from tribal law. A full bench of the appellate division agreed with his contention and quashed the conviction. Watermeyer, C.J., held that the restraint of personal freedom by executive action was foreign to the principles of South African law. The powers in question were 'merely a reenactment of a principle of Native Law', and applied only to persons subject to that system.2 Parliament introduced an amendment in 1952 to close this loophole. The new clause states that the powers of removal are additional to those vested in the governor-general as supreme chief; and are of full force and effect in relation to any African who has been exempted from laws specially affecting natives.8 Since the removal orders had been detached from the office of supreme chief, a doubt arose as to whether the common law safeguard of audi alterem partem applied. Was the subject entitled to a hearing before the order was issued? The Transvaal supreme court gave a negative ruling when rejecting an appeal against an order banishing the applicant from to Frenchdale in the northwestern Cape. Rumpff, J. ruled that the procedure conformed to

INSIDE SOUTH WEST AFRICA tribal usage. Shaka would not have been obliged to grant a hearing, and neither was the Governor General. He had the sole right to decide what was in the public interest.4 The appellate division overruled this judgement, however, and decided that the legislature had not intended to make tribal practice the guide. Centlivres, CJ., pointed out that the Governor-General was not the statutory supreme chief of Africans in the , where the appellant resided, and that the subject could claim benefit of the audi alteram partem rule.5 Parliament promptly demolished this defence. The GovernorGeneral was made the supreme chief also of Africans in the Cape. An amendment authorized him to issue a removal order without prior notice to the banished man or woman. The latter was entitled to a statement of the reasons for the order, and to so much of the information on which it was based as the Minister could disclose without detriment to the public interest.6 The crippling effect of the amendments became apparent in the case of Mabe, a deposed acting chief of the Thlako in Rustenberg, Transvaal. Banished to Vryberg in the north-western Cape, he applied to have the order set aside on the ground that he had not been given a prior hearing. The court granted his application on 5 June 1956. Before he could take advantage of this relief, he received a , dated 7 June, and issued under the amended act. He thereupon asked the court to set aside the second order, on the ground that it had not been issued in the public interest, or with proper information. The court refused his application for two reasons. The amended section excluded the audi alteram partem rule; and the accuracy or sufficiency of the information was irrelevant to the validity of an order made in good faith.7 The court ruled in the later case of Joyi v. Minister of Bantu Administration and Development8 that the Minister was virtually the sole judge of what information he should disclose or withhold in the public interest. Originating in a spurious version of tribal rule, the supreme chief doctrine has moved full circle by recreating chieftainship in its own image. A proclamation of 1960 enables the Minister to delegate the power of banishment to any chief in the . An authorized chief may order, without prior notice, the removal of a person, with his family, goods and chattels, to any place in the tribal territory; and may order the demolition, without compensation, of his hut

TECHNIQUES OF DOMINATION: SOUTH AFRICA'S COLONIALISM or dwelling. An appeal may be brought against a removal order to the chief commissioner, whose decision is final. The executive's power to banish for an indefinite period, and without trial or appeal to the courts, is characteristic of a colonial regime, and not of the traditional tribe. A chief in the days of tribal rule depended on the general body of tribesmen for his armed force. He was responsible to his councillors and people. Coercion could stretch no farther than their consent. He ran the risk of being deposed or assassinated if he abused his authority beyond the point of their endurance. These sanctions no longer apply. Power now comes from above and is absolute. The peasants have an ambivalent attitude to their chief. Important religious and secular functions are attached to his office. He commands respect, even loyalty, as the custodian of traditional values. He is obliged to enforce measures that they resent. The more closely he is identified with an unpopular regime, the more he loses his influence over the people. The greater the decline in his traditional powers, the greater his dependence on the colonial administration. The administration wants to reverse the trend. This is a major reason for the programme of separate development. It is intended to produce quasi-autonomous power centres in the 'homelands'. Chiefs, councillors and officials of the regional authority are to acquire a special interest in perpetuating tribalism. They will enforce order among the peasants and suppress opponents to apartheid policies. The role of the colonial administration is to discipline recalcitrant chiefs, provide troops and material when needed to overcome resistance, and insulate the 'homeland' against 'foreign ideologies' or the pressure of the national liberation front. FRAGMENTATION OR UNITY The government denies the existence of a national consciousness among the Africans of South West Africa. A great diversity of physical and cultural types is said to preclude the possibility of joint action for a national purpose. The commission of 1962-3 went further, and predicted an outbreak of inter-tribal hostility if the various ethnic communities were represented on a single central authority. The commission claimed to have evidence that the people preferred separate homelands for each ethnic community.9 Group hostilities are neither inevitable nor irremediable. They

INSIDE SOUTH WEST AFRICA are not innate in a social consciousness, but develop in specific circumstances which can be isolated and alleviated. Nationalist leaders throughout Africa have to cope with the effects of cultural and even physical diversity, but it has not prevented them from forging links to bind the various groups into a national entity. For it is a general characteristic of African societies that political and economic unification has preceded the emergence of a national consciousness. A colonial administration can foster or retard the growth of a national consciousness. South Africa could encourage it by using familiar methods, such as education through a common medium, a free movement of persons, goods and services across tribal boundaries, the promotion of trade unions, political parties, churches and other non-tribal organizations. White settlement has undermined the tribal way of life, and has laid the material basis of a wider social order. Institutions should now be developed to match the new conditions. This can be done only by the people themselves, and under their own leadership. Self- government is needed to enable the people to move forward from tribalism to a wider, more modern type of society. South Africa has adopted a reactionary policy. It enforces tribal exclusiveness. Every reserve is treated as a self-contained island, sealed off from the rest of the territory except for the outlet through which flows the essential labour force for the settlers' farms, mines and industries. No non-resident, African or white, may enter a reserve without a permit, and permits are seldom given except, again, to the agents who recruit workers for the big companies and the settlers. Segregation is enforced as strictly in the police zone. This is the 'white territory', where the darker-skinned are allowed only on condition that they work for the settler community. Ruth First gives a vivid description of their precarious condition. 'Thus each Reserve, town or farming area is an island surrounded by a sea of restrictions. Once a man is ordained to live and work in one area, there is little or nothing he can do to change his situation. If he steps beyond the limits recorded in his passes, he risks arrest by the police, the detectives in plain clothes, the labour inspectors, who search everywhere for transgressors. The dragnet of the pass laws is inescapable.'10 TECHNIQUES OF DOMINATION: SOUTH AFRICA'S COLONIALISM Towns everywhere act as catalysts of social change. They break down traditional cultural barriers and create new patterns of social organization. National consciousness grows in an urban environment. To inhibit the process, the colonial administration enforces residential segregation of persons belonging to different ethnic communities. Every urban location is separated from the white residential area, in principle by a buffer strip of at least 500 yards in width. Every location has separate sections for the Ovambo, Herero, Nama and Bergdama. Vedder, the senator appointed to 'represent' the 'Coloured' races of South West Africa, described the system in eulogistic terms. 'It is obvious,' he said, 'that upon working days Europeans and Natives have to work together but at nine o'clock at curfew all the Natives have to be in their location and are not seen in town after this time unless they have a permit. Without a permit the European may not enter the area of the location.'1 Enlightened leaders, including some chiefs, have tried to break through the network of restraints and establish ties with one another and with the people over the boundaries of tribal isolation. Political parties of Africans and Coloured began to proliferate after 1958. Some had an avowedly tribal bias. Others, such as SWAPO, SWANU and SWANLIF, grew out of efforts to form national organizations. Little success has yet been achieved. The administration attributes the failure to deep-seated tribal antagonisms. The leaders themselves tell a different story. They complain of being harassed by the police, the commissioners and magistrates, and by the conservative chiefs acting under pressure from the administration. A typical situation arose in 1964, when Kapuuo, the chief designate of the Herero, tried to organize a national convention in Rehoboth. He was refused permission. The authorities alleged that the objection came from the Basterraad. Another convention was then planned to take place at Okarara, in the Waterberg East reserve. But the magistrate in OtJewarongo issued permits only to Herero delegates, who then refused to hold the convention. The chief commissioner would not allow Chief Hosea Kutako to visit Ovamboland, Kaokoveld and Okavango areas in 1964 to establish a political party. No visitors may enter these reserves without permission from the prime minister's office. In June 1964, six leaders of SWAPO were imprisoned at Ohangivera in Ovamboland, after being arrested in March while addressing

INSIDE SOUTH WEST AFRICA a meeting to protest at the arrest of their chairman, S. S. Kaukunga, and vice- president, Maxuiili. Detribalized Ovambo living in the police zone complained that they were not allowed to hold meetings, or attend meetings of other tribal groups, on the ground that they 'belonged' to Ovamboland. Yet they had difficulty in getting permits to visit their homes, and when there found that their opinions were ignored at meetings called by chiefs and headmen. Apartheid foments ill-will and rivalries between ethnic groups, and also closely related communities. The Coloured population is divided, not only between Basters and Kleurlinge, but also between political factions. The Burgher Association of Basters and its offshoot, the Volks Organisasie van SWA, rejected the decision of the SWA Coloured Organization to accept apartheid and separate development. SWACO thereupon demanded that Basters be expelled from Coloured townships and schools in urban areas. The Basters retaliated by refusing to allow the Coloured to hold meetings in Rehoboth. A reactionary colonial authority relies, ultimately, on coercive sanctions to suppress a popular movement for self-rule and independence. South Africa does not scruple to apply to its colony the formidable battery of oppressive statutes devised to crush the national liberation movement in the republic. The statutes that have been extended to South West Africa include the Suppression of Communism Act, 1950, the Public Safety Act, 1953, the Criminal Law Amendment Act, 1953, the General Law Amendment Act, 1962, and the General Law Amendment Act, 1963. They vest in the Minister of Justice power to prohibit meetings and newspapers, to ban persons from specified areas, to imprison persons in possession of information and to detain postal articles. When the Minister, in October 1962, imposed a general ban on meetings and demonstrations in connection with the detention, arrest or trial of a person, he included South West Africa in its ambit. The territory has been integrated into the police state of the imperial power. The settlers are conditioned to believe that the African is their enemy. Indoctrination begins at an early age in the schools, where boys are formed into a cadet corps, and trained in the use of firearms. Adults belong to commando units. Equipped with rifles and machine guns, they constitute an auxiliary branch of the police. White civilians of both sexes are trained in first aid, fire fighting, and evacuation techniques. Africans and Coloured, in contrast, are strictly

TECHNIQUES OF DOMINATION: SOUTH AFRICA'S COLONIALISM barred from the military organization, and prohibited from possessing arms of any description. The discrimination accentuates the cleavage between the racial groups, strengthens the hold of Afrikaner nationalism over the settlers, and reinforces the measures it has taken to defeat a rising of the oppressed peoples. These measures deny, repeatedly and with growing emphasis, the fitness of South Africa to govern the territory. White racists foment antagonisms between communities and prevent them from achieving national unity. The African struggle is not for the domination of one race over another. They are determined to achieve independence and self rule for the whole population. This is impossible as long as South West remains a part of South Africa's . I Mpafuri v. Rex, 1928, T.P.D. 609. 2 Rex v. Mpanza, 1946 A.D. 763. 3 Section 20, Act 54 of 1952. 4 Kuena v. Minister of Native Affairs, 1955 (4) S.A. 281 (T.P.D.). 5 Saliwa v. Minister of Native Affairs, 1956 (2) S.W. 310 (A.D.). 6 Sections 2 & 3, Act 42 of 1956. 7 Mabe v. Minister of Native Affairs, 1957 (3) S.A. 293 (T.P.D.); 1958 (2) S.A. 506 (T.P.D.). 8 1961 (1) S.A. 210 (C.P.D.). 9 Report, R.P. 12/1964, p. 55, 79. 10 South West Africa, 1963, p. 137. 11 Senate Debates, 1956, col. 3954.

The Legal Apparatus of Apartheid by J. Kozonguizi, former President, South West African National Union and A. O'Dowd South African Barrister, now resident in Great Britain CONSTITUTION AND ADMINISTRATION Under the Treaty of Peace and South West Africa Mandate Act, 1919, the functions of the administration of South West Africa were delegated by the South African Parliament to the Governor-General. These functions included all matters specifically affecting Africans. The Governor-General exercised his functions through the Administrator of SWA, appointed by the South African Government. Acting under the authority of this Act, the Administrator, in January 1921, appointed an all-White Advisory Council consisting of nine members to advise him on matters affecting the raising of funds, the allocation of expenditure and matters of general policy in respect of the administration of the territory. This arrangement remained in force until the coming into operation of the SWA Constitution Act 1925. The Native Administration Proclamation Act 1922 provided for the establishment of segregated areas, ('Native Reserves') for the African population and for the promulgation of regulations for the

THE LEGAL APPARATUS OF APARTHEID control and administration of these areas. The Native Administration Proclamation Act 1928, very similar in its effect to the Native Administration Act 1927 of the Union of South Africa, empowered the administrator to appoint chiefs and Headmen in charge of tribes, segregated African locations and reserves, to remove chiefs and Headmen, to move tribes or part thereof from one area to another, to define or alter boundaries of tribal areas and African residential areas and to exercise political power and authority previously held and enjoyed by 'any supreme or permanent native thief'. The general effect of this proclamation was to deprive Africans of all political power and authority and curtail political expression and representation. The South West Africa Constitution Act, 1925, set up a Legislative Assembly for the Territory. Voting for this Assembly was governed by the electoral laws of South Africa, which meant that no African was qualified to vote. Membership of the Assembly was confined to persons qualified to vote. The Assembly had general power to legislate for the Territory, subject to three limitations: (i) its powers were subordinate to those of the South African Parliament, whose Acts would prevail in case of conflict. (ii) Ordinances of the Assembly required the assent of the Administrator, who acted on the instructions of the Governor-General of South Africa. (iii) Certain subjects, notably 'native affairs', were reserved and were dealt with by the Governor-General. It should be noted that at all times relevant to this paper, the Governor-General of South Africa has been, in accordance with British Parliamentary conventions, simply the mouthpiece of the South African Cabinet. Therefore when in 1954 the control of 'native affairs' in South West Africa was transferred to the Minister for Bantu Administration and Development in the South African Government, this was a purely administrative change. The African population of South West Africa has always been ruled by decree by the South African Government. The Constitution Act of 1925 also provided for an Executive Committee to consist of the Administrator and four other members elected by the Legislative Assembly. It was to carry on the administration of those matters on which the Legislative Assembly was competent to legislate. The Advisory Council consisted of the Administrator and three 119

INSIDE SOUTH WEST AFRICA other members appointed by the Administrator and approved by the South African Governor-General. One of these was to be an official appointed 'by reason of his thorough acquaintance with the reasonable wants and wishes of the non-European races of the territory'. The Advisory Council was to advise the Administrator in respect of matters on which the Legislative Assembly was not competent to make ordinances, and on the Administrator's power to assent to ordinances by the Legislative Assembly. The SWA Affairs Amendment Act 1949 abolished the Advisory Council, allocated powers and functions in connection with the administration of the territory and granted representation in the South African Parliament to the whites in SWA. The powers of legislation in respect of SWA granted by the 1919 Act to the Governor-General were abrogated and vested in the South African Parliament. The Administrator was entrusted with the administration of those affairs not within the competence of the Legislative Assembly and its Executive Committee but the Executive Committee was given the privilege of advising the Administrator on those matters as well. The South West African Affairs Amendment Act, 1951, empowered the Governor-General once more by proclamation to make laws on the matters reserved to the South African Parliament, provided such Proclamation was not 'repugnant to or inconsistent with an Act of Parliament applicable to the Territory.' Proclamations must be tabled before both Houses of Parliament within 14 days after promulgation or, if Parliament is not in session, within 14 days after the commencement of its next ensuing session. Though such proclamation lapses if disapproved by Parliament, the validity of anything done in terms of such proclamation is not to be prejudiced. The SWA Native Affairs Administration Act, 1954, transferred the administration of 'native affairs' to the South African Minister of Bantu Administration and Development, and this fully integrated the Africans of the Territory into the administration of South Africa. Moreover, by Proclamation 87 of 1955, as substituted by Proclamation 119 of 1959, the Governor-General delegated certain powers granted to him by the 1954 Act to the South African Minister of Bantu Affairs. The general effect of the 1954 Act was that full administrative and legislative authority in connection with the administration and 'development' of Africans in SWA now vested in the Government of South Africa with the Minister of Bantu

THE LEGAL APPARATUS OF APARTHEID Administration and Development being responsible. The Africans are thus in terms of this Act, if only for the purposes of administration, no longer part of SWA but of South Africa and the administration of SWA exists for the benefit of the white population. There are two entirely separate administrative hierarchies in the Territory. The one, headed by the Administrator and his Secretariat, deals with the affairs of the white population. The other deals with the African population. Its head in South West Africa is the Chief Bantu Commissioner for SWA and he reports directly to the Secretary for Bantu Affairs and Development in Pretoria. A feature common to both hierarchies is that all senior positions are occupied by white men. It should be noted that all these constitutional changes were effected without consultation with (let alone approval of) the African population. LAND DISTRIBUTION South West Africa covers a total area of 318,261 square miles. Functionaly-,~ this area is divided into the soiiern Sector, Police Zone area, and the Northern area outside the Police Zone. The total number of farms in the territory is about 6,821 and they cover an area of 158,653 square miles. This includes the Rehoboth area which is only 11,434 square miles. Outside the Rehoboth area only one or two farms are owned by non-whites (Coloureds). The rest of the farms belong to the whites. The land set aside for African settlement (but not owned by Africans) covers an area of only 79,708 square miles. 23,523 square miles are in the Police Zone and 56,185 square miles outside the Police Zone, this being the total area outside the Police Zone. The Game Reserves and Parks, including Nature Reserves, cover 42,206 square miles. The rest is Government land including the Sperregebiet or restricted area in terms of the Protection of the Diamond Industry Proclamation 1939. EUROPEAN LAND SETTLEMENT The great majority of white landowners derive their title ultimately from the confiscations of land by the German administration after 121

INSIDE SOUTH WEST AFRICA the Herero Rebellion. Large tracts of land were proclaimed to be 'government land' by the Germans. Some was allotted to white settlers during the German period, but much remained in Government ownership at the outbreak of war. The South African Government considered itself the successor in title to this land and refused requests by the Herero people that the land should be returned to them. The South African Government has since adopted a consistent policy of making this land available to white settlers on very favourable terms. Government and Crown lands suitable for agricultural settlement are allocated to European farmers for a probationary period under renewable one-year leases prior to granting a five-year lease with option of purchase. Provision is made for governmental financial assistance through loans for improvement or purchase of livestock. Rent during probationary period is £1 per annum. During fiveyear period no rent is charged for the first year and for subsequent years, annual rental is charged at 2% of the purchase price for the 2nd and 3rd years and 3 % of the purchase price for the 4th and 5th years. If the option of purchase is exercised, the purchase price and interest are payable in half-yearly instalments over a period of 30 years. In 1948, the South African Government, replying to a questionnaire of the UN stated that land settlement laws applied equally to both European and Non-European, but 'the Natives have generally not yet reached a state of development where they can benefit from individual land ownership, particularly of farms'. In terms of the standard form of lease used in connection with this scheme, a lessee cannot sublet or assign, transfer or hypothecate had interest in the land leased to 'Natives, Asiatics or Coloured persons' and if the lessee marries or habitually cohabits with a 'Native or Coloured person' his lease is subject to cancellation forthwith. AFRICAN LAND SETTLEMENT The land available for African occupation- 25% of the total area of the Territory - represents the remnants of their original lands which the Germans left in the possession of the various tribes. Even 122

THE LEGAL APPARATUS OF APARTHEID this land is no longer owned by the Africans, either individually or communally. In terms of the Native Administration Act, 1954, all land in Native Reserves has been transferred to the South African Native Trust including the Berseba and Bondels Reserves where land formerly was vested in the tribes. Neither Europeans nor Africans are entitled to acquire land ownership in the Native Reserves, though in the Rehoboth Gebiet, rights of individual property have evolved and transfer can be effected with approval of the Administrator. In terms of the recommendations of the Long-Term Agricultural Policy Commission (1948) Europeans can buy farms in the Rehoboth Gebiet. MINING The Mines, Works and Minerals Ordinance, No. 26 of 1954, governs the grant of prospecting licences, which are required by any person wishing to prospect for minerals. In the Police Zone, no person other than a 'European' can obtain such a licence. In the areas (25% of the total) set aside for African occupation, prospecting licences are as a general rule to be issued to Africans, but the Administration has power to make exceptions. The Mining Regulations, promulgated in 1956 under powers conferred by the above-mentioned Ordinance, provide that in any mine owned by a 'European' the following posts must also be occupied by 'Europeans': (a) Manager, assistant manager, section manager or overseer, (b) engineer (c) person in charge of boilers, engines and other machinery (d) surveyor. In practice, all mines are at present owned by white persons, with the result that Africans are excluded from the occupations listed. AGRICULTURE Most of the legislation governing agriculture is aimed at improvement of the European farming community and is mainly in their interests; e.g. under the Agricultural Produce Export Ordinance 1928, and Cattle Export Ordinance 1930, the following all-white boards were established to control exports:

INSIDE SOUTH WEST AFRICA Dairy Control Board 1931 Meat Control Board 1935 Grain Control Board 1937 Karakul Industry Advisory Board 1940 During 1958 and 1959, a severe drought was experienced in South West Africa and a total of £2,600,000 was voted by the Legislative Assembly for drought relief. Only £85,000 was allocated to the relief of African farmers. LOCAL GOVERNMENT The towns and villages of the Territory (which are all situated in the Police Zone, but all have substantial numbers of Africans among their populations) are governed by Municipal Councils or Village Management Boards. The Municipal Ordinance No. 3 of 1949 provides that both membership of these Councils and Boards and the right to vote in elections for them are confined to white persons. Among the powers of the Councils and Boards is the power to set aside separate residential areas for Africans and to make regulations governing such areas. The only organs of local government in the area outside the Police Zone are the Bantu Commissioners, who are white officials appointed by the South African Government and drawn from the ranks of the South African public service, and the chiefs and headmen, who are African officials, also appointed by the South African government (under Section 1 of the Native Administration Proclamation, 1928). There are elected bodies known as 'Reserve Boards', but their functions are merely advisory. HOUSING As has been observed earlier, the Native Administration Proclamation 1928 introduced segregation in residential areas in SWA Housing policy and practice give preferential treatment to the European population in urban areas and all- White Town Councils provide advantageous conditions for European housing and building in European areas. 124

THE LEGAL APPARATUS OF APARTHEID INTER-MARRIAGE The Immorality Proclamation 1934 prohibits 'illicit carnal intercourse' between Non-Europeans and Europeans, whilst the Marriage Ordinance 1953 prohibits marriage between Europeans and NonEuropeans. FREEDOM OF MOVEMENT Freedom of movement of the African population in urban areas is determined, controlled and restricted by the Natives (Urban Areas) Proclamation 1951 and the Vagrancy Proclamation 1920, as well as the Native Administration Proclamation 1928; that of the rural and reserve population by the Native Administrative Proclamation of 1922 and regulations under the laws which govern and protect European farms and ownership. The main effect of these laws is to restrict the freedom of African residents outside the Police Zone to enter the Police Zone, the freedom of African rural workers to move to the urban areas and the freedom of African urban workers to move from one urban area to another. LABOUR LEGISLATION The main laws controlling labour in SWA are the following: a. Master and Servant Proclamation 1920 which puts the servant (African) in a disadvantageous position in relation to the master, e.g. breaking a contract of employment on the part of the servant is a criminal offence. b. Proclamation on Control and Treatment of Natives in the Mines and Native Labour, 1917, which gives the Native Affairs Officer powers to try Africans. c. Extra-territorial and Northern Natives Control Proclamation, 1935. d. Native (Urban Areas) Proclamation 1951. e. Native Administration Proclamations of 1922 and 1928. The effect of these enactments has already been mentioned. f. Native Miners Wage Proclamation 1940 - though minimum scales were set at a very low level, these were not enforced. g. The Factories, Machinery and Building Work Ordinance, 1952.

INSIDE SOUTH WEST AFRICA This provides for improved labour conditions but 'extra-territorial and Northern Natives' (i.e. Africans not domiciled in the Police Zone) are not entitled to the paid leave provided for by the Ordinance. h. The wages and Industrial Conciliation Ordinance 1952. (See paragraph on trade unions below.) RECRUITING LABOUR Though the Native Labourers Commission 1945-48 recommended that 'recruiting agencies should not be composed only of representatives of employer groups, but special and adequate representation should be given both to the Administrator and the guardian of native interests and to suitably qualified representatives of the Native population as well,' Africans do not have any representatives on the Board of the South West Africa Native Labour Association (SWANLA) which is the recruiting agency for African workers from the Northern Territories and Angola. COMPULSORY LABOUR In terms of the Native Reserve Regulation 27bis promulgated under the Native Administration Proclamation of 1922, the Superintendent of a Native Reserve may order any male resident of a reserve who has no means of support or who leads an idle existence to take up employment in essential public works. Under the Vagrancy Proclamation 1920 a person convicted for the first time under the Act may, instead of receiving the penalties prescribed in the Proclamation, be forced to take up employment on public works or private employment with a designated person. TRADE UNIONS The Wages and Industrial Conciliation Ordinance 1952 provides for the registration and regulation of trade unions and employers organizations and for the settlement of disputes between employers and employees. But this Ordinance does not apply to Africans, with the effect that African trade unions cannot be recognized and, moreover, strikes by African workers are an offence.

THE LEGAL APPARATUS OF APARTHEID EDUCATION The Education Proclamation 1926 replaced the Education Proclamation 1921, and then certain provisions of the SWA Constitution Act, 1925, relating to education vested the control, supervision and direction of education in the Administrator, aided by an Education Advisory Council of seven. No Africans are members of the Council. A Commission on African and Coloured education of 1958 recommended that education in SWA must be brought into line with that applied in South Africa, as far as segregation is concerned. Education is compulsory for white children but not for Non-Whites. CONCLUSION The South African statute book reflects only a part of the discrimination which exists. There are many forms of discrimination which are based upon custom, administrative practice and economic practice rather than upon law. Nevertheless, the racial division of society and the glaring discrepancies between the rights of white people and those of Africans are clearly reflected in statute law.

The South West African Economy by Sean Gervasi, Research Officer, Institute of Commonwealth Studies, Oxford University The purpose of this paper is to analyse the present economic situation of South West Africa. The paper does not trace the history of economic growth in the Territory, but it does consider the present pattern of development as the outcome of the past. It is assumed here that even an underdeveloped economy may develop in a variety of ways, that it may follow different paths of growth. The pattern of development today is therefore the outcome of a particular process of economic development. Thus the levels of living of various groups, the distribution of income and wealth, the extent and pattern and trade, the composition and rate of growth of production, etc., are not the result of some inevitable process. They are the result of particular economic conditions and particular economic policies. The course of economic development is affected by many factors. In any analysis of development the economist normally considers such questions as the availability of resources, the state of technology, the possibility of capital accumulation, and the adaptability of institutions. In the growth of a particular economy each of these factors may exert a different influence; and the relative importance

THE SOUTH WEST AFRICAN ECONOMY of each in shaping the process of growth may or may not change with the passage of time. In the case of South West Africa two factors have been especially important: the opportunities for external trade and the nature of social policy. South West Africa at the end of the First World War had scarcely been touched by commerce or modern technology. Since then the Territory has been transformed economically. One of the principal cases of that transformation was undoubtedly the expansion of world markets for primary commodities, especially minerals. From the point of view of the majority of the population, however, the particular character of the transformation was determined by the set of economic policies known as apartheid. This paper begins with an examination of the most general features of the economy and the general causes of the expansion of the modern sector over the last two decades. It then analyses the performance of the economy from the point of view of the Non-White population and assesses the efficiency of current economic policies as a means of promoting economic development in the long- run. In this analysis it is necessary to show how the essential features of the economy are related, to show, for instance, the way in which the distribution of income and wage policy are related to the prospects for self-sustained growth. Finally, the paper attempts to demonstrate that the policies of apartheid have produced an economic system which is not capable of development in any proper sense of the word. The Territory of South West Africa includes three distinct geographical . The coastal strip is Namib desert which extends from 60 to 100 miles inland. Beyond this lies a central plateau which has an average height of 3,600 feet above sea level and which there are mountain ranges which rise to a height of 8,000 feet. The eastern section of the territory borders on the , and parts of it are sand covered with vegetation. In both the eastern and central sections vegetation is sparse in the south; this becomes more dense as one moves northwards. In the central plateau and eastern sections there are good grasslands, and the north-eastern part of the country is well timbered. For the most part the territory is arid or semi-arid. There are no surface bodies of water, and the only rivers which flow throughout the year are located on the southern and northern boundaries. Rainfall rises from zero in the Namib desert along the coast to approximately 24 inches per annum, on the average, in the north-east. The territory's rainfall is highly variable, however, so 129

INSIDE SOUTH WEST AFRICA that there are periods of both drought and an unusual abundance of rain. According to the 1960 population census, the population of the territory in that year was 525,064. 427,980 of these were classified as 'Bantu', 73,154 were classified as 'White' and 23,930 were classified as 'Coloured'. The territory is divided into two broad areas: (a) the Police Zone, which is the area of European settlement; and (b) the northern zone outside the Police Zone, which is closed to European settlement. About half the population, almost all of whom are Africans, lived in the northern areas of the Kaokoveld, Ovamboland, the Okavango, and in 1960. The rest of the population, including more than 168,000 Africans, lived in the Police Zone. Half of the Africans in the Police Zone lived and worked on European farms. The remainder lived in urban areas, where they worked on labour contracts, or in the Native Reserves of the Zone. The economy of South West Africa presents an extreme example of dualism. On the one hand there is a modern, commercialized sector of activity which is based on production as we know it in industrial societies. But modern techniques of production and organization are used in all kinds of activity, in agriculture as well as in industry and commerce, and the standard of living for Europeans is relatively high. Europeans on the whole provide the skills and the capital necessary to sustain commercialized production; Africans provide the reserve of unskilled labour which the pattern of ouput of this sector requires. On the other hand there is a sector of activity in which relatively backward techniques of production are used and in which, consequently, the per capita level of income is quite low. Production in this sector is almost entirely for immediate consumption. This is a subsistence sector in which there is almost no capacity for saving or for the acquisition and application of modern techniques of production. There is therefore very little prospect of material progress in this sector of the economy. (This point will be argued more fully in the final section of the present paper.) The modern sector, by contrast, is expanding very rapidly, and with an interesting diversification of output. The South West African economy is a dual economy in the sense that its two sectors belong to quite different stages of economic development. There are almost no economic exchanges, of either skills, capital or products, across the 'boundary' which separates the two sectors. There is, however, a flow of labour from the northern 130

THE SOUTH WEST AFRICAN ECONOMY areas, and from the Reserves within the Police Zone, into various kinds of employment in the modern sector. There is no doubt that European agriculture and industry and services are critically dependent upon this flow of labour. In other aspects, however, the two sectors are almost entirely self-contained. The striking thing about South West Africa is that the figurative 'boundary' between the two sectors of the economy has become a political and administrative reality. The line which separates the Police Zone from the northern areas, the restrictions which govern the movement of non-Europeans within the Zone and the nature of the conditions under which they work make the economic insulation of the European community almost complete. 'The economy of South West Africa' and 'the modern sector' are therefore almost equivalent terms, if one ignores the dependence of commercialized production on African and Coloured labour. This modern economy is specialized in primary production, and a large share of its output is exported. The principal products are diamonds, base minerals, fish and livestock. Diamond mining is concentrated in the south-western part of the territory in two diamond areas which run northwards along the coast from the mouth of the Orange River. The mining of copper, lead and zinc is concentrated in the north-eastern part of the Police Zone, especially around . South West African agriculture is based primarily on cattle-raising. Some grains and other crops are produced in the northern and east-central parts of the Police Zone; livestock are raised primarily in the central and northern parts of the plateau; sheep and goats are raised in the extreme north-western and southern parts of the Zone. The fishing industry, which has been growing very rapidly in recent years, is concentrated at Walvis Bay and Luderitz. Although manufacturing industry has been expanding in recent years, South West Africa's economy is still quite backward, and it is highly dependent upon the importation of consumer goods, which is not true of some of its equally poor neighbours. THE STRUCTURE AND GROWTH OF THE ECONOMY The earliest figures for South West Africa's domestic product are for the year 1920. At that time the gross domestic product was only 13 million Rand, and mining production accounted for 58% of this total. The economy naturally suffered severely in the deflation which

INSIDE SOUTH WEST AFRICA followed the First World War. The combination of drought and a fall in world prices caused the level of domestic product to fall to less than 4 million Rand in 1933, or approximately 30% of the 1929 peak output. From the low of 1933, however, the economy gradually became more stable as agricultural output expanded and secure markets were established in South Africa for the territory's stock. In 1936-1940 the contribution of the agricultural and mining industries to the gross domestic product were 46-2 and 5.8% respectively. In the period after the Second World War the mining industry began to recover and to assume a greater importance in total production. The post-war economic boom caused the gross domestic product to rise from 22.2 million Rand in 1946 to 146.7 millions in 1962. According to the Odendaal Report gross domestic product at factor cost and at 1958 prices rose at a compound rate of more than 8% per year between the end of the war and 1962.1 More than four-fifths of this expansion, however, occurred between 1946 and 1955. Since then the rate of growth has been much slower, and expansion has generally been unsteady. This was once again due to the fact that the growth of the economy had been based on the expansion of mining, agriculture and fishing and on the export of products from these industries. Mining ouput reached a peak of 60 million Rand in 1956, for instance, and then fell by approximately 20% over the six years to 1962.2 The mining industry has enjoyed an extraordinary recovery, of course, in recent years. The Standard Bank of South Africa has reported that the value of mineral sales in 1963 was more than 61 million Rand and that sales rose to more than 90 millions.3 Production may have been somewhat lower, as minerals may have been sold from stocks accumulated in bad years. Agriculture has been similarly unstable in recent years. Production fell from approximately 35 million Rand in 1957 to 13 million Rand in 1960 but rose again to a level of 35 millions in 1962.2 This latter recovery appears to have been the result of a rapid expansion in the fishing industry, which promises to add to the stability of the export sector for some time. Table I (see page 133) gives details of the course of production of various sectors in South West Africa's economy since 1946. These figures reveal the extent to which general economic expansion has been dependent upon the growth of output in mining and in agriculture and fishing. They further reveal the relative instability which this dependence entails. 132

THE SOUTH WEST AFRICAN ECONOMY TABLE I GROSS NATIONAL INCOME AND DOMESTIC PRODUCT OF SOUTH WEST AFRICA: 1946-1962 (in millions of Rand) 22.2 32"2 45"0 40"3 25-2 42.2 5"2 61"0 43"9 80.3 31"6 92"9 15'6 98"1 5'6 107.2 9"3 129.0 20"3 141"6 9"8 138-8 -2"0 121"3 -12-6 121"5 0"2 122-0 0"4 127"3 4.3 146.7 15"2 6-4 12.8 15.1 14"6 20"8 24"7 26.7 30 2 32 2 33 8 33.5 34.9 23"3 16"8 13"2 16"0 35 2 Manuf. Trans. Min- and and Govt. Other ing Constr. Trade 5"8 6.5 9.6 11.3 20.1 30.8 36"4 23.7 35 8 50.0 60.0 51"0 42.9 47-8 49.4 50"7 47.3 1.6 1"7 2"5 2"1 3.4 4.4 5-6 6"6 7.5 8.0 8"7 10-7 14"1 13-8 14"9 12"7 14.2 4.0 5.5 6-3 6.9 8'3 10"6 12"5 14.0 15"4 18"7 19.3 20"4 17.1 16"8 17.0 19"6 20"4 2"1 2"9 3.5 3"8 4"0 4"0 5.0 6-7 7"6 8"2 9.3 10"1 11"5 13"1 13"7 14"3 15"1 2"3 2.8 3.3 3.7 4'0 5.4 6"3 7.9 8"7 10.3 10"8 11"6 12"4 13-2 13"8 14-2 14'5 The Odendaal figures indicate the extent to which the post-war expansion has been slowing down in the mid-fifties. The average rate of growth between 1946 and 1956 was approximately 21% per year. The average rate of growth between 1956 and 1962 was less than 1% per year. Despite the fact that South West Afica has experienced a certain kind of prosperity with the rapid expansion of the modern sector its economy remains a relatively underdeveloped one. This becomes clear when one compares the structure of production in the territory Gross Gross - Agric. Year Nat'l Dom. change and Incom. Prdct. in GDP Fish 1946 1947 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960 1961 1962 20"4 29"6 34.7 34 8 46"4 54.1 63"5 68.7 74.4 82 "6 85.1 91.5 83.2 76 "6 77.2 82.0 104.4 SOURCE: ODENDAAL REPORT, P. 321

INSIDE SOUTH WEST AFRICA with that of South Africa, which is itself far from being a completely industrialized country. Table 2 (below) describes the composition of output in each economy. TABLE 2 STRUCTURE OF G.D.P. IN SOUTH AFRICA AND IN S.W. AFRICA, 1955- 1959 (percentages are averages for the period covered) Industry 1. Agriculture and forestry 2. Fisheries 3. Mining 4. Manufacturing and construction 5. Electricity, gas and water 6. Transportation 7. Trade 8. Government, general 9. Government enterprise 10. All other services Total SOURCE: ODENDAAL REPORT, P. 331. S. W. Africa 19.5% 2"3% 38"6% 8.5% 5.4% 8"8% 6.2% 1.8% 8.9% 100"0 South Africa 13.3% 0.2% 12.0% 22.3% 1-1% 8.1% 14"0 8"9 3.3% 16.8% 100.0 I Thus in South West Africa the primary sectors account for more than 60% of total output in recent years, whereas in South Africa they contribute only a quarter of total production. South Africa did, at one time, of course, have a similar structure of production. The development of its industrial base, however, was made possible by the existence of a fairly large, if abnormally restricted, internal market. As a later section of this paper will indicate, such a market does not exist in South West Africa. Unfortunately there are no recent expenditure accounts for the economy. The only set which has been published contain data for the years 1920 to 1956 only. The failure of the Odendaal Commission to make public more recent figures on the pattern of expendi-

THE SOUTH WEST AFRICAN ECONOMY ture in the Territory must be regarded as a significant omission. The data for 1950 to 1956 are presented in Table 3 (see below) to call attention to certain general features of the economy. The expenditure data underscore once again the export orientation of the economy. Net exports are very high, so that consumption is quite small in relation to total expenditure. Total consumption, including government consumption, is rarely as much as 50% of total expenditure. Furthermore, in many years, the absolute amounts of consumption expenditure and total investment are almost equal. The economy of South West Africa is in fact unlike the usual underdeveloped economy in which consumption is a very high proportion and investment a very low proportion of total expenditure. The fact that the economy is specialized in primary production is revealed again in the high proportion of change in stocks to total capital formation. The expenditure figures indicate perhaps even more strikingly than the product accounts the peculiar characteristics of the Territory's economy. TABLE 3 SOUTH WEST AFRICA: GROSS DOMESTIC PRODUCT BY TYPE OF EXPENDITURE (at factor cost and in millions of Rand) CONSUMPTION CAPITAL NET TOTAL EXPENDITURE FORMATION EXPORTS EXPENDITURE Priv. Govt. Fixed Change Total Year Cons. Cons. Total C.F. Stocks 1950 24.6 4"028.6 13.2 7.220.4 12.8 61.81951 27-4 4"431.8 16.4 13.0 29.4 22-4 83.41952 32.4 5.838.2 22.2 7.830"0 24.4 92.61953 44.2 6-8 51.0 25.0 17.0 42.0 9-2 102.2 1954 48"0 7"255.2 24.2 6.630.8 25"2 111.81955 48"2 8-056"2 24"6 14"439"0 40"6 135"81956 52"6 9'261.8 26.016"242.2 50"6 154"4 Totals may not add owing to rounding. SOURCE: KROGH, P. 10. 135

INSIDE SOUTH WEST AFRICA Table 4 (see below) sets out data for gross domestic saving and capital formation. These figures suggest that the Territory has not been dependent upon foreign borrowing for its capital formation. Net foreign borrowing is the sum of net exports of goods and services and includes factor payments of income to foreigners. It can be seen that in every year borrowing by foreigners in this sense has significantly reduced the domestic resources available for capital formation. It will be noted that the proportion of foreign borrowing to total saving, and therefore to capital formation, has tended to rise. This is probably the trend. TABLE 4 GROSS DOMESTIC SAVING AND CAPITAL FORMATION (millions of Rand) Income 19501951 19521953195419551956 Gross personal saving 16.8 23.2 21.6 22.0 19.2 29.4 24.2 Gross corporate saving 5.8 10-2 8.2 10.4 8.6 14.2 19.6 Public auth. surplus 3.8 5.6 8.8 9.6 11.4 13.2 21.0 Total gross dom. saving 26.4 39.0 38.6 42.0 39.2 56.8 64.8 Net foreign borrowing -6"0 -9.6 -8.6 - 7"8-17.8-22.6 Total funds available 20.4 29.4 30.0 42.0 31.4 39.0 42.2 Totals may not add owing to rounding. SOURCE: KROGH, p. 12. These estimates do not, of course, give a comprehensive picture of the economy's real dependence on foreign savings, because the bulk of corporate savings belongs to foreigners. Even if a substantial portion of corporate savings belongs to foreigners, it would still appear that South West Africa is a net lender. This position probably results from the high level of exports. If figures were available for recent years they would probably show that the economy's net lending position has become even stronger. The collection of separate trade statistics for the Territory was suspended in 1957. Although figures for some major items of trade

THE SOUTH WEST AFRICAN ECONOMY may be found in particular places, it is not possible to obtain comprehensive information on trade flows between the Territory and any other country for any later date. The most that can be done at present is to give a rough indication of the kinds of commodities traded and to identify South West Africa's principal trading partners. The notes on industries given above provide a fairly clear idea of the pattern of exports from the territory. The principal commodities shipped abroad are diamonds, pelts, ores, livestock, fish and fish products and other agricultural produce. A US Department of Commerce Economic Report for 1961 states that the most important imports were metals, metal manufactures, machinery and vehicles, followed by textile fibres, foodstuffs, oils and paints, and leather and rubber goods.4 To this should probably be added coal and petroleum products. The United States Vice-Consul in Cape Town, who provides the information on which the Report was based, described the South West African economy as one which had enjoyed a favourable balance of trade since the end of the Second World War, 'exporting the products gained from its natural and agricultural resources and importing manufactured articles, foodstuffs (other than meats), fuel, and lumber'. Furthermore, he saw no reason for 'any radical change in this pattern'. As has already been suggested, the very rapid growth of mineral and other exports in recent years probably means that the balance of trade today is even more favourable than it was in 1961. The principal destinations of the Territory's important exports have been noted above. On the import side, the most important supplier is the Republic of South Africa. In 1954, 80% of the value of total imports in the Territory originated in the Union.5 Some of these, of course, were re-exports from South Africa, but most were supplied by South African industry and commerce. By 1961 the Federal Republic of Germany had replaced the United Kingdom as the second largest exporter to the Territory. German imports consisted primarily of manufactured goods. The United States and the United Kingdom were the next most important exporters. In 1954 the United States provided about 3% of South West African imports; the percentage today may be somewhat higher. Krogh has provided an abbreviated schedule of international transactions for the years 1920-1956. (See Table 5, page 138.) These figures have been adjusted for changes in the real terms of trade, and it is these adjustments which make them appear exaggerated when

INSIDE SOUTH WEST AFRICA they are compared to the estimates of gross domestic product quoted previously. These figures do, however, give some idea of the order of magnitude of the favourable balance of trade which the Territory has on the average realized. There are almost no published figures on capital flows, and there is no basis even for estimating what these might be at present. The US Vice-Consul in Capetown gave an estimate in 1961 that about 2 million Rand in capital were flowing into the Territory every year from South Africa. TABLE 5 SOUTH WEST AFRICA: INTERNATIONAL TRANSACTIONS (millions of Rand) Merchandise Net Travel Govt. Total Total Trade Year Imports and Trans. Expnd. Misc. Imports Exports Balance 1950 27.6 0.8 "0 0.2 28.8 41"6 12.8 1951 37.8 1.0 -0 0.2 39.4 61"6 22.2 1952 42-8 1.2 "0 0.2 44.6 69.0 24.4 1953 52.0 1.8 .0 0-2 54.4 63"6 9.2 1954 48-4 1.4 0.2 0.4 50-4 75.6 25.2 1955 54"6 2.0 0.2 0.4 57.2 97-8 40.6 1956 57.0 2.2 0-2 0.6 59.8 110.4 50.6 SOURCE: KROGH, P. 20. INDUSTRIES IN THE MODERN SECTOR MINING. From the point of view of international trade, mining is South West Africa's most important industry. Diamond mining is the mainstay of the industry. Base minerals are also produced, the principal products being blister copper, refined lead and lead concentrates. The production of salt, although relatively unimportant, has been increasing rapidly in recent years. Some tin is sold within the Territory to the canning industry, but almost all mineral production is exported. The total value of exported minerals in 1961 was 53 million Rand, of which diamonds accounted for almost 70%. In

THE SOUTH WEST AFRICAN ECONOMY 1962 South West Africa exported minerals of an equivalent value; diamonds then accounted for approximately the same share and were valued at some 36 million Rand. The following are the figures for the value of major mineral sales in the two years for which recent data are available: Value of Mineral Sales in Rand 1963 1964 Copper - blister 8.1 m. 14-0 m. Lead - refined metal .0 m. 7.1 m. Lead - concentrates and ores 11-3 m. 9.4 m. Salt 0.3 m. 0.5 m. Tin 0-8 m. 0.5 m. Zinc 0.4 m. 0.4 m. Germanium .0 m. 0.6 m. Diamonds - gem 39.6 m. 8.8 m. Diamonds - industrial 1.4 m. 1.5 m. SoURCE: Economic Review of South Africa and South West Africa 1964-1965, The Standard Bank of South Africa Ltd. In 1962 South West Africa ranked fifth in the world as a producer of diamonds. Ninety-eight per cent of the Territory's total diamond output was produced by the Consolidated Diamond Mines of South West Africa Ltd., which is a subsidiary of the Consolidated Mines, Ltd. The De Beers company is owned primarily by South African and European capital. It is estimated that present known diamond reserves in the Territory will be worked out in 17 years. The Territory is also fairly important as a producer and exporter of base minerals. In 1962 it ranked tenth among the world's producers of lead; its ouput in that year was equivalent to 35% of the US lead production. Much of the base mineral output comes from the Tsumeb Corporation, which is the largest mining company in the Territory after Consolidated Diamond Mines. In 1962 the value of the company's metal sales was almost 23 million Rand; in the same year the total value of exports and local sales of all minerals

INSIDE SOUTH WEST AFRICA (not diamonds) in the Territory was approximately 26 million Rand. The positive reserves of the Tsumeb mine which is the company's principal working, are over 7,300,000 tons and are expected to be worked out within some 25 years.6 The Tsumeb Corporation was formed after the Second World War by the American Metal Company Ltd. The latter's successor, American Metal Climax, retains direct and indirect interests equal to 30% of the equity of the corporation. Other companies owning an interest in the corporation are the Union Corporation, Ltd., and the Selection Trust, Ltd. A United States Company, the Newmont Mining Corporation, owns 29% of the Tsumeb Corporation stock and manages the Tsumeb mine itself. In 1963, the principal consumers of South West African mineral exports were the United States, Belgium, West Germany, South Africa and the United Kingdom. Lead concentrates, blister copper, tin and zinc ore accounted for the bulk of these exports. The United States alone spent more than 8"5 million Rand on blister copper and lead concentrates. FISHING. In 1948 South West Africa's fishing industry was relatively undeveloped. Its export earnings were only 3% of the total value of the Territory's exports. In 1964 the earnings of the industry were expected to amount to more than 34 million Rand on the basis of 1962 prices. The industry today is second only to mining in importance and has become one of the Territory's principal economic assets. Originally, it was based on the fishing of snoek, whitefish and lobster for unprocessed, and mainly local, consumption. Today, however, the industry is based on the large-scale production and processing of sardines, which provide over 90% of the total fishing revenues, for overseas markets. In 1963 the sardine industry at Walvis Bay alone earned more than 20 million Rand. Rock lobster, which is the industry's second most important product, brought in revenues of more than 3 million Rand in 1963. The rise of the fishing industry has been an important stimulus to manufacturing, which has expanded rapidly in response to the need for processing larger quantities of fish for meal, oil and canning. The bulk of the fish-oil produced in South West Africa is shipped to the United Kingdom; fishmeal exports go primarily to Europe, Israel, the United States and the . Canned fish is shipped to South Africa, which consumes perhaps 15% of this total, the 140

THE SOUTH WEST AFRICAN ECONOMY United States, the United Kingdom and . The prospects for exports of processed fish are considered to be good despite the world-wide expansion of the industry. A substantial amount of South African capital is invested in South West Africa's fishing industry. Four South African companies control most of the industry either directly or through subsidiaries. The total current assets of these companies in 1962 amounted to more than 10 million Rand.7 AGRICULTURE. The most important agricultural industries in South West Africa are the Karakul industry, the meat and livestock industry and the dairy industry. The Karakul sheep is bred for its pelt and thrives in the plateau region south of Windhoek. South West Africa is now the principal world producer of Karakul pelts (Persian lamb) and ships approximately 2 million of them overseas every year. Sixty per cent of the pelts go to the West German garment industry; the remaining 40% goes to France, Italy, , and the United States. The total income from exported pelts in 1962 was more than 12 million Rand." The Territory also produces a surplus of slaughtered stock which is exported to South Africa; in 1962, 168,000 cattle and 67,000 sheep were exported to the Republic. The value of the cattle alone was more than 1.3 million Rand. Cattle are also slaughtered locally for shipment as canned meat. The capacity of South West Africa's meat canneries is about 120,000 head of cattle per year. The Territory's most important dairy products are butter and fresh milk. The total value of all dairy products in 1962 was about 2 million Rand, and about 40% of the industry's output by value was shipped to South Africa. The capital invested in the industries is on the whole local capital; there certainly is no significant foreign participation. THE PERFORMANCE OF THE ECONOMY The Odendaal Commission has argued that economic development under the Mandate has proceeded very rapidly and that the benefits of this development have reached all the people. However, the economy of South West Africa is on the whole underdeveloped and basically stagnant. The modernization of agriculture, at least in the Police Zone, and the development of the mining industry have brought little benefit to the Non-White population. Some of the

INSIDE SOUTH WEST AFRICA resources of the Territory have been developed but this development has taken place largely at the expense of the African and Coloured population. Those who have benefited from economic development, the Whites primarily, live as a nation apart and apparently intend to continue doing so. Much has been made of the relatively rapid rates of growth which the economy experienced during the last two decades. As has already been noted, the Odendaal Report states that the average rate of growth of domestic product between 1946 and 1962 was more than 8% per year at constant prices. In most economies, this would be an admirable performance. In South West Africa it is quite meaningless as an index of general economic progress. For it must be remembered that more than 350,000 people out of a population of some 525,000 live in the subsistence sector of the economy. And the estimates of South West Africa's domestic product do not include production for own consumption outside the commercialized sector? The figures of domestic product and growth refer only to the progress of the modern sector in which Europeans live and work. The value of African subsistence production is almost an unknown quantity. Krogh, who constructed the Territory's system of product accounts, estimated that subsistence production was less than 3.5% of domestic product in 1951. 10 More recent figures are not available, but there is little reason to believe that the proportion of subsistence production would be very much higher today. Even if that proportion were 7 or 8% the subsistence sector would remain, from the point of view of production, an insignificant part of the economy. Given the nature of the controls imposed upon the Non-White population and the economic condition of the people in the Reserves and the northern areas it is unlikely that the figure today is that high. Official statistics therefore tell us nothing about the condition of the majority of the population. The footnotes of learned articles suggest that their condition can only be described as the most abject poverty. There are some slightly more recent figures, from the same source, which reveal the extent of the disparity in the standards of living of the White and the Non- White population. The Odendaal Report argues that the per capita level of income is fairly high relative to that of other countries in Africa. In 1962 per capita income in the Territory was 191.6 Rand." Average figures are most misleading, however, in a country in which there are great inequalities in the distribution of income. The more relevant figures are for per capita income 142

THE SOUTH WEST AFRICAN ECONOMY in the Police Zone and in the northern areas. In 1956 the per capita income of residents in the Zone was estimated at about 352 Rand, whereas per capita for residents outside the Zone was 17 Rand.12 These figures are striking to say the least. It must be accepted that the data on the income of Non-Whites and of residents outside the Police Zone are indicative of a situation in which the achievement of self-sustained economic growth is quite impossible. Private capital formation is scarcely conceivable amid such poverty. Given the disparity of wealth and income between the two sectors of the economy and the nature of the rules which separate the two communities living in them, the Non-European population can provide, with some exceptions, neither markets nor goods for the modern sector. In these circumstances the growth and development of the modern part of the economy can make almost no contribution to raising the levels of living in Non-White areas. For the Non-White population will be unable to learn the skills, tastes, etc. which provide both the means and the incentive for change and innovation. These are essential in the process of economic development. Since the NonWhite population is so large a part of the total population, this economic separation also makes the sustained growth of South East Africa's manufacturing sector most unlikely. For the expansion of manufacturing, which is the sector on which progress depends in the long run, is not possible when there are no domestic markets large enough to absorb production. Thus the policy of apartheid prevents the non-White population from learning to help itself and at the same time blocks the development of a sector whose expansion is crucial to economic progress. For these reasons alone the path of growth which South West Africa is presently pursuing must prove a dead end. The effect of economic policy has also been to ensure that economic development for the majority of the population will be a much more difficult task in the future than it would have been had an independent administration been created 15 years ago. For the economic growth of the Territory in recent years has been based on the exploitation of wasting assets, the wealth of the mines. This wealth, according to all reliable estimates, will be exhausted in 20 or 25 years. A rational policy for the Territory 15 years ago would have been to use the foreign earnings generated by mineral production to undertake a broad programme of development, in which the emphasis would have been on African agriculture and social 143

INSIDE SOUTH WEST AFRICA development. Instead the wealth of the Territory has gone to finance high levels of consumption for the White minority, foreign dividends and, given the Territory's needs, an unbalanced programme of public expenditures. The effect of the economic policy pursued by the mandatory power has therefore been to waste the wealth which a poor people needed for economic development. If one accepts the norms of government which prevail in democratic countries, then the use of the word 'waste' in this context would seem to be justified by objective analysis. It is inconceivable that any government remotely sensitive to popular feeling or with a sense of the public interest could have allowed wasting assets to be used as they have been used in South West Africa. The economy is heavily dependent upon exports, and to an unusual degree. The gap between the gross domestic product and the gross national income is probably one of the largest in the world. The difference between the two concepts is that the latter does not include the proportion of domestic output accruing to foreign capital and labour. In 1955 the gross domestic product of South West Africa was 129 million Rand, and the gross national income was 82.6 million Rand. This was a fairly typical set of figures. The Odendaal Report gives the following data: Years Percentage of G.P.D. accruing to Foreigners 1946-1950 16.3% 1951-1955 32"4% 1956-1960 35"8% 1961-1962 32"0% SOURCE: ODENDAAL REPORT, P. 327. (It should be noted that the percentage of GDP accruing to foreigners is not quite the same thing as the percentage of exports, which may be somewhat larger.) If one takes an average for the years 1958 to 1962, furthermore, the share of the GDP accruing to foreigners is more than 37%. Thus the contribution of South West Africa's resources and labour to the income of foreigners is not only very substantial, but it has also been growing in recent years. It has already been argued that indices of economic growth in the territory are no measure of general economic progress. It is now possible to 144

THE SOUTH WEST AFRICAN ECONOMY see that, given the tremendous importance of foreign earnings, the product statistics are not even significant as an index of the Territory's progress. In short, the figures suggest that the territory has been systematically exploited. In the light of the points made above it is very difficult to see how the Mandatory power could advance the claim that it has attempted to promote economic progress in the interests of the whole population. Through a long process of economic growth, the White population has reached an extraordinarily high standard of living. The Non-White population, by contrast, has, as a direct consequence of the policies of apartheid, been kept in a state of poverty from which it has no hope of emerging as long as these policies prevail. The Government of South Africa, furthermore, has allowed foreign exchange earnings from exports to go to non-residents who are unlikely to make any contribution to the territory's real development in the future. Thus the present welfare of the Non- White population has, at the very least, been ignored, while its future has been seriously jeopardized. It is not a coincidence that this has been allowed largely in the interests of South Africans. ECONOMIC DUALISM AND APARTHEID Economic dualism is not an uncommon phenomenon in underdeveloped countries. Part of an economy may, for various reasons, expand and change very rapidly until it is recognizably 'modern'. The rest of the economy may well remain underdeveloped for a long time. This usually happens when the modern sector has close economic and social links with developed countries and relatively few with its own 'backward' sector. In such economies, however, the authorities must at least pay lip service to policies designed to break down the barriers between the two parts of society. For the inhabitants of the backward sector often have reason to feel that their resources and labour are being exploited in the interests of inhabitants of the more advanced sector. Quite naturally, they press for policies to reduce the gap between standards of living in their own part of the country and the more privileged part. Consequently the natural course of events in a democracy would involve the gradual multiplication of links between the two sectors, an increased flow of goods and skills and finance in both directions, and an eventual closing of the gap.

INSIDE SOUTH WEST AFRICA In South West Africa, however, the aim of policy has been to ensure that the backward sector remains backward. The distinction between the two sectors is for the economist a purely analytical one. The authorities of South West Africa have made it an administrative reality by restricting the permanent residence of most Non-Whites to the northern areas and the Reserves and by forbidding movement across these borders except under stringent conditions. This is the most important step in reducing the links between the two sectors to a minimum. The goods consumed in the modern sector cannot be consumed in the Non-White areas for lack of purchasing power. The flow of finance is limited to a relatively low expenditure by the State for infrastructure. There are no opportunities for acquiring the skills used in most occupations in the modern sector. There are, in fact, almost no enduring contacts of any kind between the inhabitants of the modern sector and those in the Non-White area. The one exception is that men from the Reserves are recruited for work for short periods in the mines, on the farms and in the towns. The one issue which has not yet been discussed in this paper is the complex of labour laws and pass laws by which the 'Native' worker is controlled in South West Africa. The nature of these laws and regulations, against the background of general economic and social policy, leads one to believe that the control of labour is the fundamental concern which lies behind all policy. For it is only on this premise that the multiplicity of harsh and bizarre arrangements governing the life of the Non-White population begins to make any sense. These arrangements make the African economically dependent on White employers and make it virtually impossible for him to refuse the terms on which employment is offered, whatever they may be. The whole system, in fact, appears to be designed to ensure a massive one-way flow of labour from the non-White areas with almost nothing given in return. The figures for income distribution which have already been cited are sufficient evidence of this. The present situation of the Non-White population is the final outcome of a process which began with of the land by South Africans after the First World War. In 1913, the White population of the Territory was 14,830; there were at that time 1,138 farms settled by Whites. These farms had an area of approximately Ili million hectares. In 1945, with a White population of some 38,000, 3,722 White farms occupied an area of more than 27 million hectares. But by that time the supply of land available for allocation 146

THE SOUTH WEST AFRICAN ECONOMY to Whites had reached its limits. The South African Government then began to make additional land available by successive extensions of the Police Zone. The Zone was in fact extended in 1953, 1954, and again in 1965. By 1962 there were more than 5,000 White farms occupying an area of nearly 40 million hectares. 13 According to Lawrie, White farmers now hold approximately 48% of the total area of South West Africa as either freehold or leasehold. Native Reserves comprise approximately 25% of the total area.14 It is generally agreed, furthermore, that the Africans have been relegated to the poorest quarter of the land. Although some of the Reserves are in areas of heavy rainfall, the sandy soil cannot retain water, and it is consequently impossible to grow crops satisfactorily. The impression that African land is on the whole not fertile or good pasture is confirmed by Wagner's studies of the major Reserves. Thus there has been an increasingly inequitable redistribution of the land, tantamount to simple expropriation, and the effects of this redistribution have been aggravated by the restriction of Reserves to areas which are generally incapable of providing a reasonable standard of consumption. It is sometimes argued that the effect of land policy has not been to reduce the well-being of Africans in the Reserves but 'merely' to keep them at the level on which they have always lived. This is not true. The contraction of the areas designated for residence by NonWhites has taken place over a number of decades in which the NonWhite population was continually expanding. The area available per capita for farming and cattle raising has thus been declining for both reasons. These are not the only factors which have depressed the well-being of Africans and Coloureds. The Economic Commission for Africa pointed out that '... The setting aside of land for members of different racial groups has almost invariably led to overcrowding and exhaustion of much of the land set aside for Africans and underutilisation of other areas . . . In brief, the division of the economy into arbitrary African and non-African sectors rather than treating the economy as one whole, has had and cannot but have deleterious consequences.'5 There are no figures of per capita income for African farmers over time. But there are many reasons for believing that the average per

INSIDE SOUTH WEST AFRICA capita income among those who consume their own production today is lower than it was for a farmer or tribal herdsman seventy years ago. The last stage in the process of land redistribution began in the early nineteen- thirties. That process may have begun simply to encourage White settlement. But by 1950 its continuation seems to have become part of a deliberate effort to make the African economically dependent. The consequence of restricting a growing population to increasingly smaller areas was to create a desperate need for the jobs offered in the Police Zone. The White community appears to have been fully conscious of the desirability of cheap labour. Thus in 1960 the Administrator of the Territory announced: 'I want to make a very special plea tonight here to all our municipalities, industries, business concerns and private people: Do your duty for the welfare of the people in this country and do with as little non-European labour as possible. We must create a surplus of labour,'16 If the goal was so plainly seen, it may be assumed that the White community knew what it was doing when it fashioned the laws and regulations which made the goal attainable. The laws and regulations which are used to create the surplus of labour systematically debar the 'Native' from doing or being anything but cheap labour. They prevent him from being a prospector, an owner, an entrepreneur or an operator in any industry. They prevent him from taking part in any process for the settlement of disputes. They deny him technical, managerial or professional posts in any industry. They leave him almost no freedom of choice with respect to the type of employment, conditions of employment or place of employment. They deny him the protection and compensation which is given to 'White' employees. They confine him, for all practical purposes, to unskilled labour in industry. In short, they deprive him of every freedom which is so highly prized in other countries. In 1953 an ad hoc committee of the United Nations and the International Labour organization produced a report on forced labour. In that report, the committee examined the whole range of legislation and rules by which labour was then regulated in South Africa and South West Africa. The committee expressed the opinion that

THE SOUTH WEST AFRICAN ECONOMY the pass system was used for 'directing a supply of ample, and consequently cheap, labour towards regions where it is required for economic reasons.'17 The committee argued that the ultimate consequence of the system was 'to compel the Native population to contribute, by their labour, to the economic policies of the country.'8 In South West Africa, the system of pass laws has been carried to its logical extreme. It is difficult to avoid the conclusion that the laws of South West Africa have now legitimated a system of forced labour. The conclusion of the committee in 1953 that such a system already existed 'in an indirect sense' must be put less cautiously today. In the opinion of the writer the emergence of this system of forced labour is the principal cause of the peculiar pattern of development which the Territory has experienced. 1 Report of the Commission of Enquiry into South West Africa Affairs 1962- 1963 (Odendaal Report), page 321. 2 Qdendaal Report, page 321. 3 Economic Review of South Africa and South West Africa 1964/1965, The Standard Bank of South Africa Limited. 4 Department of Commerce, Basic Data on the Economy of South West Africa, Washington, 1961, page 10. 5 Department of Commerce, op. cit., page 12. 6 Implications of the Activities of the Mining Industry and of the Other International Companies Having Interests in South West Africa, United Nations, A/5840, 5 January 1965, Chapter 5. 7 United Nations, A/5840, chapter 9. 8 United Nations, A/5840, chapter 10. 9 D. C. Krogh, 'The National Income and Expenditure of South West Africa (1920-1956)', South African Journal of Economics, 1960, page 4, footnote 5. 10 Krogh, idem. 11 Odendaal, page 327. 12 Krogh, op. cit., page 16. 13. R. First, South West Africa, appendices B and C, based on published figures and estimates from the Lands Branch of the South West Africa Administration. 149 INSIDE SOUTH WEST AFRICA 14 G. Lawrie, 'New Light on South West Africa,' African Studies, Johannesburg, 1964. 15 Economic and Social Consequences of Racial Discriminatory Practices, United Nations, E/CN.14/132/Rev.1. 16 The Windhoek Advertiser, 14 January 1960. 17 U.N. I.L.O. Ad Hoc Committee on Forced Labour, Report paragraph 350 (U.N. Document E 2431, 1953). 18 U.N. I.L.O. Report, paragraph 374.

The Economic Relationship with South Africa by Robert B. Sutcliffe, Fellow of Jesus College Oxford A paper on the economic relationship between South West Africa and the Republic of South Africa is destined from the start to be not so much an objective piece of economic analysis as an exercise in detective fiction. The current figures upon which accurate judgements must be based are concealed within the South African statistics; the problem must be solved by piecing together disparate pieces of evidence into a structure which approximates to the elusive truth. The problem is to identify the extent to which South West Africa is a viable economic unit if the links with South Africa were to be broken. Almost any economy is viable at some level of income. In recent years, however, there has been rapid growth in the South West African economy and average income levels per head are among the highest of all underdeveloped countries, though this average conceals the great gulf between Europeans and Africans. The important questions, therefore, are whether the present level of economic development could be maintained and whether future prospects of economic growth would be hampered in the event of an economic break with South Africa.

INSIDE SOUTH WEST AFRICA GEOGRAPHICAL FACTORS South West Africa shares borders with South Africa, Bechuanaland and Angola.' There are important economic movements over all these borders. Labour is imported from Angola and some Bechuanaland meat exports come by road to Gobabis where they join the South West African rail network and are transported to the Republic. Since the territory's first contacts with the world economy were with the Cape it is not surprising that the most important border economically is that with South Africa. The only rail access to South West Africa is across this border and the roads are moderately good. Most of South West Africa's imports come by way of this railway and it is also an important route out for some South West African exports - especially cattle but also minor items like butter which finds a market in South Africa. Some of the labour force (white and African) also comes from South Africa. South West Africa's geographical dependence upon the Republic is, however, by no means as acute as that of the three High Commission territories which, like so many African countries, are landlocked. South West Africa possesses the immeasurable advantage of a coastline and good port facilities at Walvis Bay (and to a lesser extent at Luderitz). In the event of a disruption of economic relations with South Africa these port facilities would have to be extended to cope with the receipt of imports but at least imports could easily reach the territory by sea in the event of South Africa's hostility. Paramount among the geographical limitations to South West Africa's economic development is the shortage of water. No rivers within South West Africa itself have a constant flow; this feature is confined to border rivers - the Orange (the Southern border with South Africa), the Cunene (the north-west border with Angola), the Okavango (the north-eastern border with Angola) and the Chobe and Zambesi rivers which border the extreme tip of the .2 Development of these inconveniently located water resources for irrigation and for power is a prerequisite for future agricultural and industrial development of the territory. And among neighbours with whom co-operation to this effect will be necessary is South Africa, which already has a scheme in operation to harness the Orange River mainly for her own rather than for South West Africa's benefit. 152

THE ECONOMIC RELATIONSHIP WITH SOUTH AFRICA TRANSPORT AND COMMUNICATIONS The railway line which links South West Africa with South Africa has already been mentioned. The accounts of the railway are kept separate for the two territories and the railway in South West Africa normally incurs a deficit - at present roughly between Rml and Rm3 per year. The accumulated deficit was Rm5l4 in 1963.3 In addition the locomotives (about 100) and rolling stock (over 4,300) in South West Africa are the property of South African railways. An economic break with South Africa might therefore, cause considerable dislocation: in the first place there might be the necessity to purchase some of the locomotives and rolling stock; the question of how many would be needed if less trade were done with South Africa and more with overseas countries cannot at present be answered accurately. If the section of railway to South Africa could expect to be less used than at present, the rest of the railway system, expecially the line to Walvis Bay, the supposed port of entry for most imports, would be more fully used. Secondly, failing an unlikely act of generosity on South Africa's part, the accumulated debt would have to be serviced and at some time repaid. The size of the debt is further discussed later. The third problem would be the financing of the annual railway deficit which would have to be met out of South West African government revenues. This, however, is a burden shouldered by a great many countries, especially those in the early stages of development. The size of this annual deficit had been kept as low as possible by the split tariff on the railways. Freight rates on South African Railways are, as is normal, tapering rates; for journeys across the South West African border, however, the tapering ends and recommences at the border just as if the cost were for two entirely separate journeys. In the event of the separation of administration of the two railway systems this split tariff would presumably effectively remain,4 unless a political break left co-operation between the two railway systems intact. The split tariff applies to all goods except for livestock, the major item moving from South West to South Africa. The split tariff must have had important effects though these are impossible to quantify. The major effect is to increase the transport costs and hence the price, of imports from South Africa. On the one hand this increases the cost of living in South West Africa and thus tends to reduce the real standard of living; on the other hand the

INSIDE SOUTH WEST AFRICA increased prices offer a form of over-all protection to South West African industries, actual and potential. That this protection has been ineffective is evidenced by the fact that the proportion of Gross Domestic Product originating in primary production remains extremely high and has not fallen substantially. In any case the split tariff covers all goods entering South West Africa including raw materials. As a form of protection, therefore, it is ineffective since protection in order to be of use to industrial development, must be able to discriminate between manufactured goods (which should be selectively protected) and raw materials (which should be obtainable for domestic industry as cheaply as possible). In the opposite direction (from South West to South Africa) protection is also afforded for South African goods against potential South West African competition. Again it is unlikely that this has been of great effect. In any case it is almost certain to remain in the event of a separation of the two countries as an obstacle to the competitiveness of South West African goods in the South African market. Cattle, South West Africa's major export to the Republic, are additionally restricted by quotas giving an advantage to South African producers. The operation of air services between the territory and the Republic also incurs a loss in most years and is consequently subsidized by the Republic. This subsidy was not large and totalled Rm2.1 between 1947 and 1963.s This air service is operated by . In addition a private airline (South West Airways) is licenced to operate internal services within the territory. Besides, this, South West Africa is connected by air to Angola and Rhodesia by Portuguese Airways and Central African Airways; also Trek Airways run services to Europe. South West Africa's modern telecommunications system is owned and operated by the South African government and all overseas telephone and telegraph services go by way of South Africa. Postal services are integrated with South Africa but all local costs are met from South West African revenues. IMPORTS AND EXPORTS Table 1 (see page 155) gives a summary of estimates of South West Africa's foreign trade in the years between 1950 and 1956. Columns (1) and (3) show total exports and imports respectively while

THE ECONOMIC RELATIONSHIP WITH SOUTH AFRICA columns (2) and (4) show the proportions going to and coming from the Union of South Africa. Column (5) shows the balance as goods and services; interest, dividends and other net factor income from abroad is not included in this figure. From this column it can be seen that this balance (net exports) has an upward trend and was in 1956 very large. The proportion of exports and imports to gross National Income is shown in Columns (6) and (7). These proporTABLE I SOUTH WEST AFRICA'S FOREIGN TRADE, 1950-6 (1) (2) (3) (4) (5) (6) (7) £ mill. %age £ mill. %age £ mill. Exports Imports Total to Total from Net as % of as % of Exports S. Africa Imports S. Africa Exports GNI GNI 1950 20"8 26 13"8 72 6-4 90 59 1951 30"8 20 18"9 72 11.1 114 70 1952 34"5 16 21'4 72 12"2 110 68 1953 31"8 21 26"0 69 4"6 93 76 1954 37"8 25 24"2 73 12.6 102 65 1955 48"9 23 27.3 73 20-3 118 66 1956 55.2 21 28.5 74 25.3 132 67 souRCEs: D. C. Krogh, The National Accounting Framework of South West Africa, University of Pretoria Thesis, 1958. Tables C. 1. and C.2. D. C. Krogh, The National Income and Expenditure of South West Africa, 1920- 1956, South African Journal of Economics, 1960, Table IV. Odendaal Report, p. 321, Table CVII. Note that figures in this table are in £ not R. tions are remarkably high even for an economy largely based upon mining. In the years from 1950 to 1956 South West Africa received on average about 72% of its imports from South Africa: some of these were South African products; others were South Africa's re-exports. On the assumption that a political break with South Africa ended all economic ties most of these imports could be obtained with little difficulty in world markets. In any case, whatever the economic consequences of a political break, it would be in South West Africa's interests to obtain many of these imports, especially of

INSIDE SOUTH WEST AFRICA manufactured goods, from sources cheaper than the comparatively expensive South African one. The reason that this has not happened hitherto is that South Africa's manufactures have been protected in the South West African market by the existence of the customs union between the two countries. The ending of this customs union would considerably cheapen many of South West Africa's imports. Some imports could still be obtained most cheaply from South Africa. And for these goods, which are mostly raw materials such as coal, a complete economic break would force South West Africa to find more expensive sources of supply overseas. For coal there is one alternative, namely a pipeline from the Wankie coalfield in Rhodesia. This major project has up to now been rejected on the grounds of cost but might become a live proposition again if South African supplies ceased to be available. From column (2) of Table 1, it can be seen that during the early 1950's roughly one-fifth to one-quarter of South West Africa's exports went to South Africa. The most important commodity involved was livestock (cattle) which often comprised over one-half of the total. The Odendaal Report remarked that 'it is really only cattle, and some small stock, butter, powdered milk, cheese and tin concentrates that find their main export market in or through the adjoining Republic of South Africa'.6 In addition 'more than 15% of the canned fish production of Walvis Bay finds a market in the Republic of South Africa and this market is continuing to expand'.7 It is impossible to say to what extent new markets would have to be found for these exports after a political break with South Africa. South Africa's demand for meat is constantly increasing and alternative supplies are not readily available. If the South African market were to become closed then other markets for these exports could probably be found although a larger proportion of meat exports might have to be exported in canned form. The great majority of exports do not go to South Africa. In the years 1953-8 60% of exports went to two countries - Britain and the United States,' and 75% went overseas; this figure is now probably higher. Recent estimates of the value of South West Africa's exports are not easily available. Table 2 (see p. 157) gives an incomplete picture for 1964. The major item missing from this list is cattle exports to South Africa. This would add perhaps a further Rml 5 to the total bringing

THE ECONOMIC RELATIONSHIP WITH SOUTH AFRICA TABLE 2 EXPORTS, 1964 (INCOMPLETE) Rm. Diamonds 60.3 Copper 14.0 Lead-copper-zinc concentrates 7-9 Refined lead 7.1 Other minerals 3.9 Fish, fish meal and fish oil 30.0 Karakul pelts 13-7 Rock Lobster 3.8 Partial total 140.7 souRcE: South West, Financial Mail Special Survey, August 20, 1965. it to Rml55-6 which can be regarded as a minimum estimate for total exports in 1964. Almost all the diamonds, and lead ore are sold on the world market. Karakul pelts go mainly to be sold in London but subsequently return for processing to South Africa. The increasing rock lobster trade is mainly for the North American market. Fish oil goes mainly to the United Kingdom; and fish meal is sold 'mainly to the Continent of Europe, Britain, Israel, the United States of America, Australia and the Far East'.9 Canned fish exports go to over 20 countries but 'the most regular buyers are still Western Europe, the United Kingdom and the United States of America'.10 South West Africa's reliance upon a few products (of which diamonds and copper may be exhausted in 25 years) and a few markets involves serious long-run economic problems which are quite independent of the ending of the South African connection. They are problems which are shared by many developing countries and the answer to which is economic diversification. There is some promise that exports can be further diversified by expansion of the fishing and canning industries. The small population, however, does 157

INSIDE SOUTH WEST AFRICA not hold out the likelihood in the near future of any major possibilities for domestic industrialization (though there are plenty of minor ones). In the very long term, therefore, it may make good sense for South West Africa to see itself as part of a broader economic unit in Southern Africa. Political changes may eventually make this a more palatable objective. One further point about South West Africa's export markets must be made - namely that for some products there exist joint marketing arrangements with South Africa. For instance, 'all fishmeal and fish oil sales are pooled and handled by a joint selling organization'."' If a break with South Africa resulted in the ending of these arrangements they would have to be replaced. This will require expert personnel and may constitute an additional demand upon an independent South West African administration since government marketing operations may be the appropriate solution. CAPITAL FORMATION No recent information is available upon which to base an estimate of South West Africa's dependence upon foreign sources of finance for her capital formation. The picture for the years up to 1956 is however, comparatively well documented. Table 3 (see page 159) gives estimates of savings and investment for the period 1950-56. Professor Krogh interprets these figures as follows: 'An analysis of the results . . . suggests that the territory has not been dependant to any substantial degree upon the possibilities of obtaining finance from any major external source for her remarkable post-war capital formation development. But in this respect it should be noted, however, that these estimates do not give a comprehensive picture of the economy's "dependence" on the savings of foreigners because . . . the bulk of corporate savings belongs to foreigners.'12 This conclusion applies only to the years up to 1956. No detailed information is available for later years; but there is no reason to suppose that the general pattern has substantially changed in more recent years. Agricultural capital formation remains largely selffinanced and the investment of the mineral producers has been out of profits. It is probably, therefore, that South West Africa remains a net exporter of capital and, in spite of the claims of the Odendaal 158

THE ECONOMIC RELATIONSHIP WITH SOUTH AFRICA TABLE 3 GROSS DOMESTIC SAVING AND CAPITAL FORMATION 1950- Income 195 (a) Gross personal saving 8-4 (b) Gross corporate saving 2-9 (c) Current surplus of Public authorities 1-9 (d) Total gross domestic saving 13-2 (e) Net foreign borrowing and gifts"3 -3-0 (f) Total funds available 10-2 Expenditure (g) Gross Public Capital Formation 1.0 (h) Gross Private Capital Formation 9-2 () Gross domestic Capital Formation 10-2 0 1951 1952 1953 195 11-6 5-1 10-8 4-1 11"0 5-2 I -.' I L11 4-3 7-1 9-8 2-8 4"4 4-8 5'7 6-6 10-5 19-5 19-3 21-0 19-6 28-4 32-4 -4"8 -4-3 14-7 15-0 21-0 -3-9 15-7 -8-9 19-5 1-1 1-8 2-3 2-5 2-7 13-6 13-2 18-7 13-2 16-8 14-7 15-0 21-0 15-7 19-5 -11-3 21-1 3-1 18-0 21-1 soURcE: Krogh; National Income and Expenditure, p. 12. Report, is to no significant extent dependent upon the South African capital market. This conclusion requires some qualification, namely that in the last year or two a programme of public investment has begun (based on the recommendations of the Odendaal Report) which has been partially financed by loan funds made available by the South African government. Even if an independent South West Africa rejects much of the Odendaal plan it would still want to mount a development programme of similar magnitude. Some of the finance for this might have to come from international sources. A further qualification is the possible effect of a break with South Africa upon the position of South Africans in South West Africa. If white farmers leave in large numbers the government might find 159 56, £ MILLION 4 1955 1956

INSIDe SOUTH WEST AFRICA it necessary to take over from the private sector the role of investor in agriculture. The same may be true of the fishing industry at present largely the monopoly of South African fishermen. The problem, or rather opportunity in both cases will be to replace foreigners with a new group of local farmers and fishermen. The government's role in the training and assistance of other kinds which this would involve might be a major one. If, in the private sector, South West Africa is at present a net exporter of capital (i.e. domestic savings is greater than domestic investment) one of the symptoms of this may be the structure of the liabilities and assets of the banking system in South West Africa. While no figures are available it may be tentatively conjectured that the banks in South West Africa are under-lent in relation to domestic deposits. South West African deposits probably finance investment and consumption in South Africa. If this is so then it suggests a possible source of future credit and funds for investment in South West Africa. No great hopes should be pinned on this, however, since the emigration of South Africans from the territory could substantially reduce domestic deposits. The banks operating in South West Africa are branches governed by South African laws (the Standard Bank, Barclays and Volkskas Beperk); there is no reason why these should not continue to operate under a new status in an independent South West Africa. The South West African currency is the same as the South African and is backed by the same reserves. Since 1961 there has been a branch of the South African Reserve Bank at Windhoek. An independent South West Africa would need its own reserve bank which rightly should inherit a portion of the South African reserves. GOVERNMENT REVENUE AND EXPENDITURE Until the start of the implementation of the Odendaal plan in 1964 almost all public expenditures in South West Africa were financed from local revenues. There were two exceptions to this; the first is the railway deficit already described; the second is a portion of expenditure on the police force, defence and African administration which is undertaken by the South African administration. This is a very small item since partial compensation has been paid for these services by the South West African to the South African administration. 'In 1961- 62 expenditure (on the police) amounted to R1,164,657, which was R782,657 in excess of the Administration

THE ECONOMIC RELATIONSHIP WITH SOUTH AFRICA of South West Africa's contribution of R382,000. The accumulated excess of expenditure over contributions had increased to R6,526,375 at 31st March 1962'.14 In any case an independent South West Africa would have to incur less expenditure than this since much of it was the expense involved in administering apartheid. It was suggested in the previous section that some future government capital expenditure might have to be financed by international aid. On current expenditure South West Africa should be in a more independent position. The deficit on the railways would have to be paid for and so would expenditure on the police. On the other hand tax rates both on income and profits are currently low and could easily be raised. In view of the large profits repatriated abroad there is a strong case for raising more revenue from mineral producers either by a higher profits tax or by an increased export levy. In the long term South West Africa faces revenue problems when her major mineral resources are exhausted; but this problem is irrelevant to the South African connection. A more immediate problem might arise if many whites leave South West Africa. In this event the revenue from personal income tax would probably decline and would have to be made good from other sources. In other ways emigration of whites could help the economy by reducing imports and freeing large areas of good land now only partially used. An economic break with South Africa involving a change in the source of many imports would, of course, provide South West Africa with a new source of revenue in the form of more customs duties on imports. The lack of these revenues at present certainly offsets much of the expenditure in the territory by the South African government. The Odendaal Report recommended a complete reorganization of government finance in the territory. Responsibility for a number of items - agriculture, Non- White education, mines, prisons, pests, health and others (amounting altogether to about 60% of expenditure) were to be assumed by the South African government. This reorganization seems to have been shelved pending the outcome of the World Court decision. In the meantime, Table 4 (see page 162) shows the estimated sources of government revenue for the year 1964/5. The item 'loan funds made available by South Africa' (Table 4) is a new item and presumably represents the finance of some of

INSIDE SOUTH WEST AFRICA the capital expenditure recommended in the Odendaal Report. The Odendaal Report recommended an initial 5-year plan under which South Africa would spend Rm155 on capital investment and incur an extra average annual current expenditure of approximately Rm3. TABLE 4 EsMATES OF REVENuEs, 1965 Rm. Loan funds made available by S. A. 18.0 Diamond mines income tax 11.0 Diamond export duty and profits tax 8-9 Customs and excise 6-5 Companies' (non-mining) income tax 5-0 Mines' (non-diamond) income tax 4-0 Interest 3.5 Income tax, individuals 3-0 Post and telegraphs 2-4 Miscellaneous loans 2-2 Overseas shareholders' tax 0.7 Loan recoveries 1.3 School fees 0.6 Other 2.6 Total income 69.7 add Accumulated balance 7-8 Total Available 77.5 sOuRCE: South West, Financial Mail Special Survey. CONCLUSION A passage in the Odendaal Report rhapsodizes upon the contribution of South Africa to the South West African economy: 162

THE ECONOMIC RELATIONSHIP WITH SOUTH AFRICA '.. . the Republic has in the past incurred considerable capital expenditure on Railways and Harbours which serve the Territory, without any question of compensation for or repayment of the capital sums. In addition to this capital expenditure of approximately R54 million on permanent works in South West Africa, the Railways also supplied all locomotives and vehicles, as well as aircraft. Furthermore, the Railways accumulated a working loss of R53 million on railway, road transport and air services while the Republic of South Africa made further contributions of over R6 million to other services. The provision of capital services, without any obligation to repay the amounts involved, representing a cash value of over R165 million or more than R300 per head of the present population, must surely be the most valuable programme of aid per head any territory in the world has ever received from a friendly country'.15 A number of points need to be made about this passage. In the first place, if the statement that no obligation to repay exists is to be taken at face value, the figures give no indication at all of the budgetary position of an independent South West Africa; the major extra fiscal burdens would be the railway deficit, the airways deficit and some police expenditure. The total of these items would be unlikely to amount to much more than R4 million or about onetwelfth of locally raised revenue in 1965. Secondly the Odendaal commission believed that these sums had been spent 'at the expense of the tax-payers and public of the Republic of South Africa, without their standing to gain any benefit in return'.1 On the contrary, the development of transport facilities must have contributed considerably to the opportunities which led South Africa's industries to come to supply nearly 80% of South West Africa's expanding import market. South Africa's exports to South West Africa may have amounted to about Rm54 in 1962.'1 It must also have helped the activities of South African capital in the territory. In any case investment in transport need not be seen only as economic aid but also as commercial investment by the South African Railways which might well have been expected to yield a positive return in time. Finally since it is not clear what is involved in the R6 million for 'other services' it may be necessary to add to South West Africa's 'debts' to the Republic R3 millions outstanding on pre-war loans

INSIDE SOUTH WEST AFRICA and RI-8 millions in accrued interest not paid during the war. The upper limit of the debt is, therefore R169.3 millions plus the value of postal, telephone and telegraph installations. How much of this would have to be paid is a matter for political settlement. Such a settlement should not lose sight of the fact that South Africa has benefited from the expenditure; in addition the Odendaal Commission's disclaimer that any repayment was expected should not be forgotten. The Odendaal Commission, developing the theme of the links between the two economies, states that 'the Republic of South Africa has been able as a strong neighbour to assist in creating a favourable general climate in which South West Africa could prosper'. 18 There is, of course, some truth in this; nevertheless South West Africa buys more from South Africa than the other way round. For her export earnings South West Africa is more dependent upon the economic health of Britain and the United States than of South Africa. The conclusion of this paper is that the disinterested munificence of South Africa is greatly exaggerated. On the positive side is the financing of the railway deficit and perhaps some police expenditure. These must be considerably offset by South West Africa's membership of the South African customs union which has both increased the price of many imports and robbed South West Africa of some customs revenues and the opportunity to protect her own industries. South West Africa possesses many of the attributes of a typical colonial economy - the exploitation of raw materials by foreign capital and the repatriation of much of the profit and the artificially stimulated dependence for most consumer goods upon imports from one country. In the first respect South West Africa is the world's colony; in the second respect it has become South Africa's. In order to proceed to higher levels of economic development the territory will require some international aid; to maintain existing income levels, however, after an economic divorce from South Africa, it appears that South West Africa will not be in need of substantial alimony.

THE ECONOMIC RELATIONSHIP WITH SOUTH AFRICA 1 The Caprivi strip also has a border with Zambia. 2 Report of the Commission of Enquiry into South West Africa Affairs, 1962-3 (Odendaal Report), p. 407. 3 Odendaal Report, p. 385. 4 Its abolition was recommended in the Odendaal report. 5 Odendaal report, p. 389. 6 Odendaal Report, p. 315. 7 Odendaal Report, p. 349. 8 D. C. Krogh, The National Accounting Framework of South West Africa, University of Pretoria Thesis, 1958. p. 304 9 Odendaal Report, p. 349. 10 Odendaal Report, p. 349. 11 South West, Financial Mail Special Survey, August 20, 1965. 12 D. C. Krogh, The National Income and Expenditure of South West Africa, South African Journal of Economics, 1960, page 13. 13 Item (e) represents 'the annual net exports of goods and services including factor income payments to foreigners'; 'the amounts represent net foreign borrowing and transfers received, minus signs denoting net outflows and plus signs net inflows of foreign funds'. (Krogh, National Income and Expenditure, p. 13.) 14 Odendaal Report, p. 463. 15 Odendaal Report, p. 467. 16 Odendaal Report, p. 467. 17 This estimate is arrived at as follows: it is assumed that imports amount to 65% of Gross National Income (see Table 1) which the Odendaal Report gives as Rm 104.4 for 1962 (p. 321). It is then assumed that 80% of these imports come from South Africa. This is a higher proportion than for the years 1950-56 but is the figure given by the Odendaal Report (p. 513). 18 Odendaal Report, p. 513.

The Condition of the People by J. Rogaly, South African journalist on economic affairs Few subjects can be so well documented yet so wrapped in mystery as 'the condition of the people of South West Africa.' In weight of documents at least the 526,000 inhabitants of the territory are truly rich: there is not only the mountain of paper emerging from the International Court of Justice at The Hague, but there are also the voluminous United Nations committee reports and, apparently the most detailed, the 557 closely printed pages of the South African Government's Odendaal Report.* Yet, at the end of it all, anyone who has not visited the territory (as I have not) is left with a bloodless set of statistics, tables, maps and laws. Thus at the outset there must be a warning: the conclusions drawn in this paper are based on documents; they cannot have the verisimilitude of experience. This distinction is important. As a South African by birth and upbringing I know, for example, that the peculiar flavour of life in that country emerges more clearly * Report of the Commission of Enquiry into South West Africa Affairs, 1962-63. R.P. No. 12/1964. Pretoria £6 15s. Od. 166

THE CONDITION OF THE PEOPLE from its literature than its documents; even with the wealth of literature on the subject the physical experience of being there is almost impossible to convey to those who have not. The reservations duly made, a reading of some of the documents - most of all, of the Odendaal Report - leads to the following conclusions. It is plain, for a start, that what is true of the rest of Southern Africa is true of South West Africa. Virtually all of the rich are white: just about all of the blacks are extremely poor; the mixedblood 'Coloured' population is slightly better off than are the Africans. At the same time the country has a more highly developed infrastructure than have many east, central and West African countries. Largely because of this, and also because of the existence of services provided for the white community, it is possible to demonstrate (as the Odendaal Report does) that - at least until the date of the report - the territory seemed better off in many ways than many African countries. But demonstrations of this point depend upon taking an average figure that includes both whites and blacks; if the figures are broken down the picture is quite different. For example, on page 127 of the Odendaal Report it is stated that (in 1960) there was an average of one medical practitioner per 20,000 people in the central belt of Africa. A table follows; here is an abbreviated version of it: Medical Practitioners State per population Population served Rep. of South Africa 1: 1,800 15,840,000 South West Africa 1: 5,500 526,000 Basutoland 1: 20,000 700,000 Swaziland 1: 13,000 230,000 Angola 1: 17,000 4,640,000 Ghana 1: 25,000 6,690,000 Nigeria 1: 40,000 35,090,000 Senegal 1: 50,000 18,000,000 How very fortunate, it would seem, are the people of South West Africa. But there is a more detailed table, relating to South West Africa alone, on page 157 of the same report:

INSIDE SOUTH WEST AFRICA No. of Pop. in Ratio Medical round in round Area Practitioners figures figures All S.W.A.: 94 510,000 1: 5,400 Southern sector 87 260,000 1 : 3,100 All Northern sector 7 250,000 1: 35,700 The Northern sector: Kaokoveld 1 9,200 1: 9,000 Ovamboland 4 203,000 1: 50,000 Okavango 2 27,000 1: 13,500 All the 94 doctors in this table are white, save one 'coloured' practitioner practising in Windhoek. Nor is it to be imagined that the Africans in the southern sector benefit to any appreciable extent from the presence of 87 doctors among them, since these 87 doctors, the report says on page 157, 'settled in the White communities for professional, economic and social reasons'. Not to put too fine a point on it, it is thus clear from the South African Government's own report that South West Africans are well enough served by doctors - if they are white. The Odendaal Report explains the discrepancy between medical services for whites and blacks by pointing out that '. . . only persons with a strong sense of mission . . . would be willing to continue working under such circumstances . . .' meaning the lack of white land rights, white schools, churches, relatives and friends, in the African areas up north. Let us take one further example of the same kind of thing. On page 244 of the report a chart shows South West Africa as having a 'percentage school attendance' of nearly 75%, way above the figures for the other African countries on the chart - 28% is Ghana's score for example, while Tanganyika's is 15%. But page 245 shows the percentage of the possible school population 'which was receiving any education' in 1962 to be: 168

THE CONDITION OF THE PEOPLE Whites 99% 'Basters and Coloureds' 90% Africans 46% Immediately below this is a table showing 18 African countries all of which (save Basutoland, with 57%) have a percentage school attendance less than the 46% of the South West African Africans. This, too, needs close examination. The table's three columns divide school attendance into age-groups - primary (5-14 years); secondary (15-19 years) and total (5-19 years). The figures reflect the generally known position of preindependence Africa, in which the vast majority of children who get to school get no further than primary school. But in this table 26% of Ghana's school age population got to secondary school in 1960; the figures for the other territories range from Algeria's 10% to Somalia's 1%. Just bear those figures in mind for a moment. For on page 255 a detailed breakdown of African education in South West Africa appears. The commission concludes from this breakdown that in 1962 (when the other African territories were two years on) the percentage of African pupils in secondary classes in South West Africa was 0.3%. This is less than one-third of even poor Somalia's 1%. And things, according to Odendaal, were really worse still. For no less than 90- 7% of the children were in the four lower primary classes (with nearly half in the first), and 68.8% in the sub-standards 'a' and 'b'. The lesson, to my mind, is that statistics that compare the position of the people of South West Africa taken as a whole with the position of the people of other African countries can be grossly misleading. Of course all the people, black and white, of the country count, but the relevant argument is about the distribution of wealth between them. To revert to the education statistics, for example, the whites enjoy compulsory education up to Standard VII and, by 1962, four-fifths of those who had been Standard 1 in 1955 had reached Standard VIII. Similar comparisons can be made in most other departments of life; in almost every case, it seems, the bulk of the opportunities 169

INSIDE SOUTH WEST AFRICA are there for the small white population to enjoy, while the distribution to the African population is usually so small as to ensure a thin spread indeed. But first, here is a breakdown of the population (1960 figures): No % Africans 428,575 81.47 Whites 73,464 13.97 'Coloureds' 23,965 4.56 And this is how the land is shared out between these population groups: the territory is divided into a 'northern' and a 'southern' sector. Just about all of the whites live in the southern 220,000 square miles; they are forbidden to enter the 98,000 square miles of the north without special permission. The 'Bantu homelands' or 'native reserves' -areas considered to be the only truly African land in the territory - comprise 23,500 square miles (divided into 17 separate areas) in the south, and 56,000 square miles (divided into 4 areas) in the north. The total: 79,000 square miles of assured 'African land', though none of it individually owned. The number of farms (mostly white, but including some 'coloured'owned farms) is 6,821; these occupy 158,600 square miles. Thus, leaving aside white-owned land in the towns, the white farmers command an area of the country almost twice as large as the African areas, which are communally owned and grazed upon. The South African government, through its Odendaal Report, has proposed that this plainly unfair division of the land should be substantially altered. The essence of the proposal is that the total area of 'Bantu homeland' would be increased by more than 50%. Changing from square miles to hectares, the increase would be from the present 21 6 million hectares to 32.6 million hectares. The South African government has already made a start on this job. It has begun to buy white farms in the south; this is part of its declared policy of going ahead with the 'economic' aspects of the report's recommendations while leaving the 'political' aspects (i.e. 'self-government' for the 'Bantu homelands') to await the outcome of the case before the International Court of Justice. Once again the facts need closer examination. The poverty of the 170

THE CONDITION OF THE PEOPLE existing Reserves is acknowledged; virtually all of the existing African areas 'have been unable to achieve more than a subsistence economy' - according to paragraph 297 of the report. The same paragraph continues: 'It is the Commission's conviction that the amalgamation of some of these homelands and the proposed considerable expansion as recommended later in this Report will, with the further training and active co-operation of their inhabitants, ensure that all the homelands, as proposed, will provide a proper livelihood in the future for their respective population groups.' Certainly the proposed expansion seems to be 'considerable'. Of the 11 million hectares to be added to the African areas, 81 million are to come from 'unsurveyed government land' - portions of game reserves included; another million comes from surveyed government land, and the rest from white-owned or white-leased land. Thus even after the 'proposed considerable expansion', Africans will be assigned to 32.6 million of South West Africa's 82.4 million hectares; the rest is to be government or white-owned or leased land. There are other anomalies. The proposed new Kaokoveld 'Bantu home' will lose a net 626,910 hectares as compared with the present Kaokoveld. This is because its western boundary - a narrow coastal strip - is to become government land. The strip is 'skeleton coast'; presumably its value is seen as strategic. None of the proposed 'homelands' has any direct access to the coast of South West Africa; yet they are to be 'self-governing'. Most of the Africans of the country will be crowded up against the Angola border (after the Odendaal recommendations are carried out), as, indeed, the bulk of them are now. The Ovambo, who comprise more than 40% of the population, will have only one-sixth of the new homelands. Much of the proposed new dispensations amounts to a tidying-up of the 'black spots' on the southern part of the map, rather than a just allocation. Two large blobs of territory in the south are reserved for non-whites; these are for the 'coloureds', 'Basters' and 'Namas'- all people whose lighter-than-average skin colour and small numbers have served to win them favourable treatment by comparison with the darker African bulk of the population of the country. What kind of treatment has this been? All the evidence suggests that, basically, very few Africans have benefitted to any serious extent from the wealth of South West Africa; that there is wealth is

INSIDE SOUTH WEST AFRICA demonstrated by the mining company earnings, the impressive infrastructure (related largely to the needs of the mines, the fishing industry, and the white farms) and the well-reported high standard of living of most whites in that country. There are, in fact, two economies in South West Africa. The African economy of the 'reserves' keeps most of the population at around subsistence level, with education provided largely by missionaries. Hospitals, cars, industries, and the other manifestations of a modern economy are few and far between. The white economy of the southern sector is well developed; it does the white population well (income tax has been far lower than in the Republic of South Africa) and sustains around 155,000 of the non-white population in menial jobs in the towns and labourer's jobs on the farms. This third of the non-white population, for all the restrictions placed on its development, and all the meniality of the jobs that keeps its breadwinners going, is relatively better off than the other two-thirds who live and work on the reserves. To these generalizations there are of course exceptions, but the generality remains true. Thus the Odendaal Report contains details of the revenue and expenditure of the territory for selected periods. Most of the development expenditure has come from a 'Territorial Development and Reserve Fund'. Between the financial year 1944-45 and the financial year 1963-64 a total amount equivalent to roughly half of the total revenue of the territory in those twenty years was appropriated to this fund. Of this amount (roughly £ 100 million), total expenditure in the period March 1963 to March 1964 was as follows: Rand (2 Rand = £1) Returned Soldiers' Account 1,525,799 General Social Security Account 625,021 Land Settlement and Dev. Account 11,048,131 Government Buildings Account 35,125,654 Roads Construction Account 44,030,000 Telecommunications, Renewals and Dev. 14,030,000 Local Authorities and Misc. Loans Account 67,023,266 Reserve Account 8,424,920 Water and Veld Conservation and Reclamation 610,000 Native Areas Account 981,733 Water (incl. loans to municipalities) 1,170,280 Capital contingencies 9,426,533 Total 194,021,287

THE CONDITION OF THE PEOPLE It should not be deduced from the derisory figure under 'Native areas account' that this was all that was spent on African development in that period. For example, some of the money that went to local authorities (i.e. in white areas) found its way into construction in those areas, and, presumably, all of the population has to some extent been served by the roads, government buildings, telecommunications, etc., in the white areas (though each in a quite different way). But the general picture is clear: heavy spending on infrastructure in the white economy of the country, with such benefits as rub off to non-whites being, more often than not, incidental. It might of course be argued, that most of the revenue on which this expenditure was based derived from white skills, capital, entrepreneurship, and the like. And counter-arguments might be brought to demonstrate the 10s or £1 a head per year taxes paid into tribal accounts to show African contributions. The trouble with such arguments is that they assume that only those who put money in to a state's coffers should draw benefits out of them. Under such a dispensation, only certain Americans would be able to use Federal roads, or go to publicly-financed schools, according to the level of tax they paid; Englishmen would be barred from the welfare state if they were poor, and all tax-earned benefits in all modern states everywhere would be divided according to a topsy-turvy rule of the rich subsidizing the rich. The argument that the whites of South West Africa should be served best by the state because they pay most into it is so contrary to what most people elsewhere believe to be right that there is little point in getting involved in it here. But an idea of the way in which current expenditure is divided (as opposed to the development expenditure referred to above) can be gained from the division of the territorial education account proposed by the Odendaal Commission. The report suggests that in future African education be the responsibility of the South African government while white education remains a territorial responsibility. The total estimated expenditure on education for 1963-64 in the report was: Rands 4,683,880. For 'Coloureds, Basters and Bantu' the apportioned amount was to be one-quarter of this - R1,170,970. The other three-quarters was apportioned to the education of the children of the white 14% of the population. Information on spending on Africans in South West Africa is hard to come by and, therefore, necessarily incomplete. But according

INSIDE SOUTH WEST AFRICA to the 1963 report of the Bantu Administration and Development ministry of South Africa (published in 1965), the amounts spent under the general development and reclamation services of the 'Bantu Trust' in South West Africa were as follows (in Rand): 61/62 62/63 63/64 Roads and Bridges 7,268 11,656 15,896 Buildings 10,665 30,878 25,592 Fencing 14,007 21,273 12,638 Experimental Farms 991 1,346 1,002 Irrigation and Water supply 165,928 107,381 369,459 Machinery 6,693 11,973 7,940 Miscellaneous 1,702 1,049 967 Subsistence and Transport 6,964 8,625 53,309 Dipping Tanks 40 10 Salaries 4,282 5,082 8,095 Forestry 2,352 1,857 2,143 Fibre Experiments - - 187 Technical services - 50,963 45,774 This is clearly puny in relation both to the needs and to expenditure on Europeans; the salaries of officials ranks high in the expendture listed. Spending on African areas has undoubtedly increased in recent years (a programme for extending hospital services is well under way) and Odendaal has set out plans to increase expenditure on African-area development by very large amounts indeed. But the picture to be gained from the documents remains one of a modern European economy superimposed on a distinctly underdeveloped and particularly poorly endowed African tribal economy. That one-third of the non-whites who do not live on the reserves are not affluent, either. One of the South African advocates at the International Court of Justice, Mr G. van R. Muller, introduced as witness Professor D. C. Krogh, a research assistant at the Reserve THE CONDITION OF THE PEOPLE Bank of South Africa, who serves on a number of distinguished economic bodies in South Africa and who told the court that he had carried out 'extensive economic research in South West Africa'. Under cross-examination by the Hon. Ernest A. Gross, member of the New York Bar and counsel for Liberia at the court, Professor Krogh said on 23 , referring to the nonwhites in the white part of South West Africa: 'I would say that . . . they do not customarily, by regulations, administratively and otherwise, move, and, in fact, own production factors to the same extent as the White members of the economy. 'They are, in fact, not absorbed by the economy but related to the economy, just as a migrant worker, for instance, coming from the Mediterranean countries to Germany or Holland or Switzerland would first have to apply for a work permit to enter the territory there . . .' In another part of this cross-examination Professor Krogh said that there are no non-whites owning land in the white rural areas'And this, to my mind illustrates that they are either not able to afford this land - because the market value is determined by the productive use made thereof by White farmers . . . or even if they can afford it, that they probably will not wish to stay there among these White farmers.' Further cross-examination demonstrates that the bulk of the non-whites in the white area are labourers, or laundry-women or in domestic services, or messengers, caretakers, and cleaners. An article by Professor Krogh (in the South African Journal of Economics in 1960) shows that the income per head in the north (i.e. the bulk of the African areas) was £8 5s Od per year; in the South it was £176 ls Od - and the southern figure is, presumably, an amalgam of the figures for black and white in that area. (White miners were getting an average of £1,200 p.a. in 1962; non-whites £100.) What of the spending proposed by the Odendaal Commission? There follows a summary of a presentation of the proposed spending made by the United Nations Special Committee on Colonialism (UN document A/5800/Add. 2 18 December 1964). The commission recommended a five-year development plan to cost Rl14,512,485 (£57 million), to be followed by a second such plan costing R60 million (£30 million) and a third one with no estimates for costs given. According to the UN document here quoted, the mainstay of the

INSIDE SOUTH WEST AFRICA economy is mining, together with agriculture and fisheries. Exports of minerals in 1962 were worth around £27 million; agricultural exports and local sales amount to just half that (cattle and Karakul pelts accounting for most of it); with fish production valued at about £12 million. The highest published official figure for the sale of produce from African areas that the UN committee could find was the R834,000 (£417,000) recorded in 1957. The 'homelands' had no export market throughout the territory's history. The Odendaal Commission stressed the important economic activities concentrated at Oranjemund (diamonds), Tsumeb and Grootfontein (metal production), Walvis Bay and Luderitz (fisheries) and commerce and industry mainly in Windhoek and Walvis Bay. 'None of these areas,' the UN committee notes, 'are to be included in Non-European "homelands".' Prospecting was being carried out in several areas, but the only operating mine within an African area was the Uis tin mine in the Okambahe reserve, part of the proposed Damaraland. The UN committee reckoned that of the R114.5 million allocated for the first five- year plan, R72 million would be spent for water and power - mainly for the further development of the 'white' area. This is reasoned thus: some R49 million of the R72 million has been allocated for the Cunene River dam and power station scheme - R40 million of which is to cover the cost of the extension of power lines from the northern border (i.e. in African territory) to the mining areas of Tsumeb and Grootfontein and to Walvis Bay and Windhoek, the white towns, as well as to pump water into the Ovamboland canal system. The canal scheme, the UN committee found, would only benefit about 27,000 people in Ovamboland; the two main tribes, numbering some 121,000, would not, according to a Water Affairs department (South West African administration) brochure quoted by the UN committee, benefit directly. Of the rest of the R72 million for water and power, R12.2 million is allocated to water supplies in the non-white 'homelands and R10.8 million for water supplies in the 'white' area, the UN committee established. A further total of R18,650,000 (i.e. £9.3 million) is allocated by Odendaal for non-white development (and reported by the UN committee), as follows: R4 m for housing and community centres for Coloured people. 176

THE CONDITION OF THE PEOPLE R3.5 m for schools, hostels, and training centres in the 'homelands'. RI 25 m for hospitals and clinics in the 'homelands'. RI 25 m for community centres for non-white local authorities and legislative councils in the 'homelands'. R8-4 m for 700 miles of roads in the 'homelands'. Further sums were allocated for airports (R3 million - immediate attention to be given to Ruacana, the site of the projected Cunene power station) and £10.4 million for buying out white farms. In sum, the condition of the people of South West Africa appears, from the documents, to have been different until now according to whether one was white or not, this difference, in spite of the large sums promised for future development expenditure, seems likely to be perpetuated.

The Land Theft by Zedekia Ngavirue, Chairman of The South West African National Union External Council The expropriation of African land by colonial settlers in Africa is not a new story to anyone who knows the continent. It has been one of the corollaries of foreign occupation in the regions which were naively labelled 'suited to White settlement'. South West Africa, with almost half of her territory in the temperate zone and with her comparatively cool high central plateau, fell into this category. There, the enormous growth of the black man's liabilities, in terms of human casualties, loss of land and stock, went side by side with the rapid concentration of the land in the hands of the ever-growing White settler community. This was a system of double- entry bookkeeping with the black man on the credit side (the giving or losing end) and the white man on the debit side (the receiving or gaining end). The thousands of Africans who died in the wars against White invasion, those exterminated under the infamous 'Vernichtungs Befehl' issued by the German General von Trotha, and those living under conditions leading to stunted growth or early death to provide a comfortable and prosperous life for the white population which 178 -

THE LAND THEFT now stands at 73,000 as against 27,000 Africans in the Police Zone (the area which the white man meant to conquer and occupy) cannot easily be computed. Suffice to say that the present white society in South West Africa, in terms of its wealth, numbers and general welfare has been and is being built at the expense of the black man. In South West Africa, the scramble for land occurred over two phases: (1) The German scramble for what was termed 'luftschwebenden' farms1 (farms floating in the air) roughly, from 1883 to 1915 and; (2) the South African White land rush which followed the German period and had its highest peak in the 1920s. We have to look at both phases, not only to gain historical perspective, but also because the effects of the first phase have been carried forward to the next and the process has in fact been continuous. PHASE ONE German methods of dispossessing the Africans of their lands varied from cunning trading deals to the imposition of boundary agreements and resort to fire-arms to subjugate the Africans, after which the lands were taken as spoils of war. First to succumb to the cheating of the German dealers were two improvident chiefs at the coast: Chief Joseph Fredericks of Bethanie who, in 1883, 'sold' Angra Pequena (now Luderitz Bay) and the land between 260 south and the Orange River (20 miles wide); and a captain of the Topnaar Namas who, through a 'purchase deed', ceded the coast belt from 260 south to Cape Frio. Both purchases were made by a German merchant, Luderitz, of . Encouraged by these successes, other German traders took their bids for land into the interior to powerful chiefs like Hendrik Witbooi and Maharero. Here they met with disappointment. Witbooi and Maharero were not ones to be cheated. It is said that the latter, when pestered by these land-hungry traders, would ask a couple of men to fill buckets with sand in the River and then present each of the traders with a bucketful: he could not countenance any larger proportion of African soil falling into the hands of white settlers. But in 1890 Maharero died mysteriously, to give way to his weak son, Samuel Maherero, who, when under the influence of rum, would sign away deeds for land 'sales'. Indeed, by Herero custom, Samuel was not the heir to Chief Maharero, but the Ger-

INSIDE SOUTH WEST AFRICA mans, having realized that they could capitalize on his passion for alcohol, made him the successor by sleight-of-hand. One of the most serious German land claims, into the signing of which they successfully coaxed and bullied Chief Samuel, is the agreement of 6 December 1894, under which the good grazing lands of Gobabis which belonged to the Khaua Namas and the eastern Hereros under the Chiefs Nikodemus Kavihunua and Kahimemua were ceded to a German land settlement syndicate. This led to the tragic battle of Otjunda in which the Khauas were nearly exterminated and their Chief Andreas Lambert fell. Following the battle, larger claims on lands in that area were made and herds of cattle were confiscated. When Kahimemua and Nikodemus went to Okahandja to protest, they were arrested, court-martialled and shot as rebels. In parenthesis, the cold-blooded murder of Kahimemua and Nikodemus was not only intended to seal the German claims on the Gobabis district but had another side to it: Nikodemus was the legitimate heir to Maharero and his presence was a nuisance to the German governor, Leutwein, who wanted to consolidate Samuel's position as paramount Chief of the Hereros. We should not put the blame wholly on Samuel Maharero nor should we reprove the Chiefs who 'sold' the coast. These people were victims of a mighty fraudulent scheme backed by Krupp guns. The Germans not only cheated but they used fire- arms where other pressures failed. This was all within the design which Paul Rohrbach (one of the German policy makers) described as follows: 'The decision to colonise in South West Africa could after all mean nothing else but this, namely that the native tribes would have to give up their lands on which they had previously grazed their stock, in order that the White man might have the land for the grazing of his stock.'1 As it transpired not even Samuel Maherero continued very long to collaborate with other Leutwein schemes and the German regime itself. When he realized that the lands of his people were rapidly passing into the hands of the Germans, and that even he himself would soon be left with only the rum keg, he came to his senses and led his nation into one of the bravest wars against German aggression. We lost the war, we lost men. And that is not the end of the story: the Germans had found an excuse - the war. So they issued 180

THE LAND THEFT an extermination order and we did not only lose more men but women and children as well. The land? It was no longer necessary to talk of farms 'floating in the air', for every German was now in possession of vast tracts of land and had a share in the stock of the fleeing Africans. The post-war problem became one of enticing settlers from Germany to come and share the land, and of collecting African fugitives to herd the cattle. Governor Leutwein reported these tragic events as follows: .. . of the three business assets of the , its mining, farming and Native labour, we have destroyed the second entirely and two-thirds of the last." Because of the extermination order issued against the Hereros, and, since they were the largest group (if we exclude the Ovambos who are outside the Police Zone) and also those who formed the epicentre of political activities in the then German Protectorate Maharero of the Hereros was the first to sign the Protectorate agreements - there is a tendency among writers to focus only on Herero losses. It must be clearly stated that the Namas, most of whom signed the Protectorate agreements at a later stage and then only nolens volens, also suffered tremendous human and material losses. After the war it was also discovered that even the Damara population (which as a weaker group at the time did not fight the Germans) had decreased' in an inexplicable manner. PHASE TWO In 1913, two years before the German capitulated to the South African division of the Allied forces, there were only 12,292 Germans in South West Africa; although their demands had been satisfied to the maximum and they had sequestered vast areas for future contingencies, they had not occupied all the available land. Hence, in that year, they promised the African remnants land at the following places: Orumbo, Okatumba, Seeis, Okaruikakao, Otjinuanaua, Okamuraere, Okaputae and Orutekavahona. In 1914, the war broke out and nothing came of this promise. Nevertheless, according to the late Festus Kandjou (he was a member of Chie Kutako's Council), the Africans moved to these lands in

INSIDE SOUTH WEST AFRICA 1917 on the advice of an English officer in the Occupation Army. Additional lands were given at Ombukazorondu, Otjiundu, Scheidoff, Klein Scheidoff, Otjimbondona, Kamokape, Okaruhuru, Otjozondjora, Omaihi and Otjipaha.S These lands and others were to become the targets in the second scramble for land in the 1920s, as we shall see below. It must also be mentioned here that during the German rule there existed some reserves for certain African groups which covered 1,028,711 hectares. Other areas which were not occupied by the Germans were those which belonged to the northern people who were not conquered, and also the Rehoboth Gebied, preserved as an autonomous community under an agreement of 1870, when the Basters were loyal German subjects who were used against the other African groups. The areas of these lands were as follows: Rehoboth Gebied 1,303,400 hectares Ovamboland 4,200,000 it Kaokoveld 5,498,056 Western Caprivi 581,120 Eastern Caprivi 1,161,216 +1,028,711 ,, (Reserves quoted earlier) Total: 13,772,503 hectares3 This was the land situation when the League of Nations formally conferred the Mandate on South Africa. In the Police Zone, where the Africans had been conquered and displaced by the Germans, the Africans had only 1,028,711 hectares or 2,323,111 (if we include the Rehoboth Gebied) as against 1,138 White farms totalling 11,490,000 hectares. South Africa accepted with silent gratitude the displacement of the Africans by the Germans and set to work to make the best of it. The Administrator's Report for 1920 stated that between 800 and 900 applications for the first 76 farms advertised by the Government had been received, and the final earmarking of the so-called 'Native

THE LAND THEFT reserves' had been suspended. The second scramble for land had begun. By the end of that year 109 holdings had been allotted to 203 settlers.4 In 1921, the Administrator reported that a Commission had been appointed to recommend reserves, but he did not neglect to explain that for this purpose separate areas were to be found 'without clashing with white interest, but at this stage there are difficulties in the way of procuring sufficient or suitable ground on account of vested rights having to be considered.' Finally, in that year (1921), five new reserves totalling 813,965 hectares, were proclaimed.1 But true to its tradition, the South African Government placed the vested interests of the whites over and above the Africans' legitimate rights and interests. These reserves were thus designed so as to provide even less than subsistence standards. The claims of the whites to the best land is one explanation for this state of affairs. The other is the traditional South African cheap labour policy whereby Africans are herded into areas far too small to support them, so that the pressure of land hunger, poverty and starvation forces them to leave their homes in the countryside to seek work on the mines and farms. (In a memorandum to the United Nations in 1952, the African National Congress of South Africa made a thorough explanation of the basis and functioning of this policy.)5 South West Africa has desert areas and all that South Africa had to do in order to carry out her cheap labour policy was to site the 'Native reserves' in or close to the most barren areas while whittling away at, or totally abolishing those reserves which were in good areas. (For a description of the reserves, see Ruth First's book on South West Africa.)4 The justification for this policy was given in the terms of reference of the Commission on Reserves referred to above, where it was stated, among others that the Commission was '. . . to establish certainty to the whites as to the permanent place of abode of the natives, to tighten up native administration to prevent vagrancy and idleness.'s To move the Africans from the reserves that she 'abolished', South Africa used force. Here she emulated the German policy and, with her modern aeroplanes, exceeded even the Germans. The Bondelswartz in the south were coerced through air bombings. In areas like Orumbo and others where the Africans went to settle in 183

INSIDE SOUTH WEST AFRICA 1917, the Government set houses and gardens on fire to drive the people away. Hundreds and hundreds of Angola Boers were then brought in to replace the Africans in these lands.' By 1926 South Africa's major land settlement operations were almost complete.4 They had successfully complemented the German schemes to establish a well- entrenched racial oligarchy. Of course, the Administrator's report of that year did complain about the shortage of labour. But it was not long before the policy of reducing the Africans to a state of permanent servitude, which has been South Africa's lever for its migratory labour and other forms of cheap labour, showed its effects. Within a few years African families were confronted with only two choices: they had to stay in the countryside and live below subsistence level or they had to send some of their younger members into 'White areas' (the lands they lost) to work as herd 'boys' or as unskilled industrial labourers to enable their families to reach subsistence level. The Bushmen, whose endurance against physical odds is beyond average, chose the former. The other groups, the Ovambos, Hereros, Namas and Damaras chose the latter. Today they are the hewers of wood and drawers of water - the servants of the Whites. The process of whittling away at African land has continued steadily. Hence, the few 'Native reserves' that remained in or close to 'White' areas have been turned into little geometrical circles, rectangles, polygons and whatnots - enclaves in the dominions of the White lords. The Whites have always talked boastfully about their culture which respects private land ownership and boundaries, and some have even looked with disdain at the African tradition of communal ownership. Referring to Africans, Professor Dr Karl Dove of Jena, sometime Director of Land Settlement at Windhoek (in the German era), had this to say: 'As to the ideas of their sense of justice, these are based on false premises. It is incorrect to view justice, in regard to the natives, as if they were of the same kultur-position as ourselves. They have no conception of what ownership of ground means.'1 Without trying to compare the two cultures (the white man's and the black man's) we can only submit that from the record of the Whites in South West Africa, we are compelled to conclude that they are the people who have no conception of what ownership of 184

THE LAND THEFT ground means. Anyone who has lived in South West Africa will know that not even the territories of the reserves have been respected. On the other hand, wherever Africans gave land to Whites who were prepared to do honest work like teaching, etc., they (the Africans) honoured the concession. For example, in 1890, Maharero gave land at Okahandja to the Rhenish Missiona which they were to use for their own purposes and also for the purpose of opening a school there. That land is still there under its old title. Similar generous donations were given at Otjimbingueeb and Waterberg. From our possessions in the latter district, we gave Otjenga to the Rhenish Mission (20 December 1897), and to the Christian Congregation at Otjozondjupa we gave a spring, land on the slope of the mountain and the valley, as well as some gardens (29 May 1899).6C The Africans respected these properties even during their war against the Germans. With the founding of the United Nations in 1946, the Africans did not fail to draw the attention of that international body to the condition in South West Africa. South Africa's abuse of her obligations under the Mandate, especially in respect of the land problem, was greatly emphasized in the petitions from the Africans. The world itself was not unaware of South Africa's abominable practices in both the Mandate and her own territory. Consequently, by joint resolution introduced by the United States, Denmark and India on 16 December 1946, the Trusteeship Council rejected South Africa's formal application to annex South West Africa to her territory. Although this resolution was more moderate than an earlier draft introduced by India, the Soviet Union and Cuba (the countries which led the main opposition against South Africa), the mere support of a major Western power, the USA, for such a resolution gave South Africa a tremendous shock. We cannot help suspecting that, by granting mineral concessions to American companies (to exploit copper and other base minerals at Tsumeb) the following year (1947), South Africa was attempting an 'imvala mlomo' tactic against the United States. (Imvala mlomo = mouth shutter; derived from a practice among Africans in South Africa called imvula mlomo - mouth opener; if you want a man to open his mouth, you say something in your favour, e.g. 'I offer you my daughter for marriage,' then you present him with a gift, a mouth opener. So, the other way round, if you do not want a person to say anything that might incriminate

INSIDE SOUTH WEST AFRICA you, then you present him with a gift, an imvala mlomo or mouth shutter.) In the same year, 1947, South Africa presented other imvala mlomos, though inadequate ones: 'Native' areas were increased by 6,650,822 hectares. What were these additions? Inside the Police Zone Soromas 6,743 hectares (old German reserve for the Namas at Bethanie) Eastern Native Reserve (new) 1,260,000 ,, (for Herero) Otjituuo (additional) 39,000 ,, (chiefly Herero) Okombahe (additional) 249,000 ,, (chiefly Damara) Waterberg (additional) 5,022 ,, (chiefly Herero) Warmbad (additional) 14,500 ,, (Nama) Outside the Police Zone The South African Government also quoted the following increases: Okavango 3,200,000 hectares Ovamboland 4,200,000 hectares (But Kaokoveld, on the other hand was reduced by 379,000 hectares, i.e. from 5,560,000 to 5,180,800.)7 The land added was mostly bad land. Perhaps South Africa did intend to give real imvala mlomos, but, the land fate having been sealed during the peak years of the land rush, no real concession was possible at such a late hour. Having done this, South Africa submitted a long report on her administration of the Mandate hoping to be treated better this time. The Report submitted for 1946 was found to be incomplete and 50 questions were put. The imvala mlomos did not work. South Africa's discriminatory practices were bitterly condemned by the UN which urged her to put South West Africa under UN Trusteeship instead. African opposition at home became more united and vocal. So South Africa went home to sulk. The Nationalist 186

THE LAND THEFT Government which came to power in 1948 condemned Smuts for having submitted the report and by letter of 11 July 1949, South Africa's Permanent Representative at the UN, Mr Jordaan, informed the Secretary-General that the Union Government had decided to discontinue sending reports on South West Africa.8 In the 1950 elections, the Nationalists' platform was apartheid and a refusal to submit reports on South West Africa, and they won the elections.9 So in the 1950s they turned their eyes to those geometrical enclaves which they now dubbed 'black spots'. Aukeigas Reserve which used to be 1,624,265 hectares was abolished and its population removed to Sorris-Sorris where it almost perished. Next on the list was . Here South Africa met brave resistance staged by a defenceless community. Men and women were assaulted by the Government police with batons and knives but under the leadership of the Rev Marcus Kooper the people stood firm. On hearing about the incident Chief Kutako asked some of his Councillors, who included the late Erastus Tjerije and Jariretundu Kozonguizi to travel to Hoachanas through the night to give moral support to the people there. One morning the police came and loaded Kooper with a few others into lorries to dump them in a semi-desert reserve called Itsawisis. But Kooper slipped out of the country and eventually made his appearance at the UN. The UN thereupon raised its voice against South Africa and the removal of the Hoachanas people was temporarily halted. Such has been South Africa's record in what was supposed to be a 'sacred trust' of the international community. This state of affairs is, of course, continuous. We cannot go into the details of the Odendaal Commission recommendations since there is a special paper on it. Suffice to say that the Odendaal scheme is basically a project of Bantustans - little Transkeis. But we all know that the big Transkei is a fiasco. Moreover the South African Transkei did not require the uprooting of hundreds of people from their homes. In the South West African Transkeis the removal of large populations is planned. The policy of 'homelands' is ridiculous. South West Africans are the last people to be led astray where this matter of 'homelands' is concerned. It is only about 62 years ago since we were driven away from our homes. Some of the people who fought in those wars are still alive. We know their praises, we sing and recite them. We remember the names of our home areas, even those which the Boers 187

INSIDE SOUTH WEST AFRICA have given names like 'Welverdient' (well deserved). Our forefathers are buried there and we kiss the soil in reverence when passing them. We scorn the offer of Bantustan deserts; above all our claim is for South West Africa in its entirety. We are neither embittered nor dismayed. We have a clear picture of the evils that have been perpetrated against us and a good insight into the forces that operate to perpetuate our deprivations. We know our problems and are not unaware of their place in the African context or in relation to the larger world. We cannot and will not try to erase the above record. Yet we will not allow it to blur our vision. 1 E. H. M. Gorges, Report on the Natives of South West Africa and their Treatment by German, His Majesty's Stationery Office, London (1918). 2 Michael Scott, In Face of Fear (Original Document). Published by the author himself (1948). 3 South African Administrator's Reports for 1920 and 1921. 4 Ruth First, South West Africa, Penguin African Library (1963). 5 Resistance Against Fascist Enslavement in South Africa-Council on African Affairs, New York (1953). 6 D. Kohler, a. A Study of Okahanda District (SWA) Ethnological Publications, No. 40 (1958). b. A Study of Okahandia District (SWA) Ethnological Publications No. 38 (1957). c. A Study of Otjiwarongo District (SWA) Ethnological Publications, No. 44 (1959). (The Government Printer, Pretoria.) 7 United Nations General Assembly, Committee on South West Africa: Information and Documentation in Respect of the Territory of S.W.A.: A/AC 73/L7, 13 May 1955. 8 Gwendolen M. Carter, The Politics of Inequality (Chapter on SWA, New York (1958). 9 Round Table No. 161, December, 1950, 'Elections in South West Africa'. 188

The Labour Force by Charles Kuraisa Member of the South West African National Union External Council The military defeat of the people of South West Africa by Germany at the beginning of this century contributed directly to the state of the African worker in the country. The war achieved the political and economic enslavement of the people, the confiscation of the land and the implanting of the new and vigorous capitalist system in the territory. Major Leutwein, Governor of the acquired colony, aptly characterized the new chapter in the history of the country: 'of the three business assets of the protectorate, its mining, farming and Native labour, we have destroyed the second entirely and twothirds of the last'. The destruction of labour force meant that labour had to be brought in from elsewhere. This was accomplished by the South African government. CREATION OF LABOUR RESERVOIRS An early feature of the South African Administration in South West Africa was the creation of 'Native Reserves' and the 'zoning' of the territory for Africans and Whites in which South Africa's pattern

INSIDE SOUTH WEST AFRICA served as a model. A number of reserves were carved out within the so-called Police Zone, in which tribal chiefs or appointed headmen were made responsible to the magistrate for the maintenance of law and order and received monthly allowances for this co-operation. The reserves were to secure a settled people (for the people were still in a bitter and fighting mood - the war of liberation which ended in the defeat of the people was far from over) and, most important, to act as a recruiting for ground the labour force. The labour laws introduced proved effective. But the supply continued to be inadequate. In the Police Zone, the area in which White settlers made their homes on African traditional lands, every African not infirm or aged had to be in employment unless he had visible means of support, which was interpreted as the possession of ten head of large stock or fifty head of small stock. Only people living in the area outside the Police Zone, and those living in the Rehoboth Gebiet, were exempt from the pass law system. The harsh enforcement of the pass laws and penalties for nonpayment of taxes led to strong resistance by the people. The 1922 Bondelswarts uprising was a direct consequence of these policies. The resistance was crushed with brutal force, but not its spirit. The Union Government representative found it necessary to promise the Permanent Mandates Commission a full inquiry into the inhuman methods of enforcing payments of taxes, but the pacification of the Police Zone populace could not, and did not, solve the problem of shortage of labour. The more white settlers found their way into South West Africa, the more land passed into their hands, and the more acute the labour problem became; in 1921 the African population was estimated to be 177,482, only 81,823 of whom resided within the Police Zone. It was quite clear that the Northern areas of the country would have to provide the additional labour force. THE CONTRACT SYSTEM The principal employers of labour in the country are the European farmers, the mining industry (including Consolidated Diamond Mines of South West Africa Ltd. and the Tsumeb Corporation) the Railways and Harbours Administration, and the fishing industry. Other sources of employment are commerce, domestic service, and road construction and maintenance. For the African worker to enter the White man's world to seek

THE LABOUR FORCE work means that he must pass through the rigorous labour machine of the territory. First he must obtain permission to enter the labour area from the local authority, his contract must be signed or thumbprinted before the New South West African Native Labour Association (Pty.), Ltd. (Nuwe SWANLA), which has the sole monopoly of recruiting labour in the North. The labourer will live for 18 months a bachelor's life in a compound, and must return home for three months after the expiry of contract, later to be redrafted for a further labour term. The worker will repeat this cycle again and again. Official figures from 1946 to 1962 show the increasing participation of contract labour in the white-run economy of the country. In 1946, out of 50,162 African males over the age of 15, 33,693 were engaged in agriculture, of whom 27,699 were labourers, herdsmen or farm servants; 2,809 were in mining occupations, including 2,767 labourers; 4,646 were in industrial occupations, including 4,012 general labourers; 2,821 were in transport and communications, of whom 2,401 were labourers; and 310 were messengers. More than half the African labourers on the farms were recruited on contract from outside the Police Zone. In 1953 the total number of Africans so recruited was 25,712, of whom 9,548 were engaged for work in agriculture, 7,045 in the mining industry, 5,456 in industries or urban employment, and 3,663 for work in the mines in South Africa. By 1955 the number of Africans drafted annually through New SWANLA had increased to 45,500. South West Africa is still far from being an industrialized country. The only industries in terms of composition and investment of large capital and hierarchy of management are, according to Dr D. C. Krogh, the beer brewing industry and the fishing industry, which has been developed on a large scale in Walvis Bay. A bachelors' hostel to accommodate more than 5,800 contract labourers was recently completed in Walvis Bay. Of the 3,327 employees in the fishing industry, 2,200 were Africans. The following figures, for 1959-1960, of workers employed in factories were quoted by the Administrator Whites Coloured African Men 1,605 824 5,133 Women 242 250 332

INSIDE SOUTH WEST AFRICA During the same period, the mining industry employed 1,675 Whites and 9,445 Africans. The wages of the African workers are shamefully low. From 1961 to 1962, the average wages per worker increased by 5"6% in the case of the White workers and 63.9% in the case of African workers. But the crude fact is that an African mine-worker still receives 10 times less than what a White employee earns. The policy is not to give him enough cash to live on, but rather to spend more on modern compound accommodation, recreational facilities, medical services, transport to and from the reserves, which costs the mining employers an average of £10 18s 4d per month for each worker, while the minimum cash wage amounts to only £4 5s 6d per month, with an average of £9 9s 6d per month. In the same period the cost of living far outstripped the increase in African wages. On farms and in domestic services wages are still lower, about £30 per annum for a domestic servant and £15 per annum for those who are engaged in one of the most important enterprises in the country, Karakul farming, which has an export value of £9 million. The labour force is designed to be cheap and so it is. CONTROL OF AFRICAN LABOUR IN WHITE SOUTH WEST AFRICA Upon entering the Police Zone, the African is invading a forbidden kingdom of the White settler. Proclamations, rules and regulations maintain two-thirds of the country for White settlers and exclude 80% of the population from it. These measures include the Native Administration Proclamation of 1922, the Extra- Territorial and Northern Natives Control Proclamation of 1935, the Natives (Urban Areas) Proclamation of 1951, and Vagrancy Proclamation of 1920. These measures not only safeguard white privilege but are designed to re-establish tribalism in the midst of modern economic development. Africans first entered the Zone under the notorious contract labour system in 1920, and they have been recruited in much the same way ever since. A contracted worker is in all senses a drafted man. He cannot in any way change his status, he is required by law to leave the labour area upon the expiry of his contract, and his employer is responsible for the return of his slave. The cardinal rule underlined by the Extra-Territorial or Northern Native Identification Pass is, 'No person may employ or take (him) into service with-

THE LABOUR FORCE out the prior written permission of a Magistrate, Assistant Native Commissioner, Officer in Charge of Native Affairs or Station Commander of Policy.' His counterpart in the enclaves of poverty within the Zone is hardly better off. To enter the 'proclaimed areas' of the White men which incidentally not only includes the principal towns but the mining and industrial areas of the country as well, he must go through a disheartening process. The man from the reserves can on paper get a permission to visit the magisterial area for not more than 14 days. He can with luck get a permission to seek work (a permit to seek employment is usually valid for 7 days). He must be in possession of a permit showing contract of service with an employer. He must produce this on demand of a policeman or any other authorized officer. Such a system of regimentation must be bolstered by mass arrests and deportations, and rising intimidation.

Education Policy and Results by Marcia Kennedy McGill, M.A. History University of Harvard Education in South West Africa today is one expression of the racial attitudes held by South Africa, which has governed it for a generation. As South Africa's policies towards its own racial groups have changed, they have also been altered in South West Africa, in keeping with the Republic's public posture that South West Africa is an integral part of the state and should be governed as such. In 1919, when the League of Nations granted South Africa the 'sacred trust' of governing South West Africa as a Mandate, the Union of South Africa had been in existence scarcely ten years and had not developed a conscious policy towards the different racial groups in its member territories. It had inherited widely divergent traditions from these territories, ranging from acceptance of equal rights for all civilized person, in the Cape Province, to a denial of such rights in the and in the Transvaal. But the military defeats of the major African tribes which forged the Union were fresh in mind in these early days of government, and left no doubt that the white man was dominant. As a result, serious thought had not been given to the future of race relationships in the Union

EDUCATION POLICY AND RESULTS by the time it was granted South West Africa as a Mandate.' Under these circumstances, South Africa pursued an educational policy in South West Africa which both assumed white ascendancy and resulted in overt neglect of the non-white majority there. The Union was confronted with an uneven educational pattern of mission schools, which had become established in South West African territory during the nineteenth century. Most of the schools which the missions had started were in the Southern Sector, or Police Zone, the central and southern areas of the territory from which the African tribes had been removed. As early as 1802 the London Missionary Society had begun schools in the Southern Sector, where it offered some basic instruction and helped develop a written language, in addition to its religious work. Slowly, other mission groups entered the field, among them the Wesleyan Methodists and Finnish Mission Society, until German rule was established in 1884 and several German religious groups went to South West Africa.2 Confronted with this mission school system, South Africa made efforts as early as 1921 to somewhat rationalize and nationalize the various schools, to consolidate its white control over them. In its first educational ordinance, it placed all the territory's education under South African authority and delegated its administration to the white Department of Education in South West Africa.8 For the white population it established state schools in the Southern Sector. The education of the African majority was left to the mission schools, aided only with a small government subsidy.4 At the advent of Union rule, school attendance was quite low among all racial groups in South West:5 1921 School Age Population (7-16 yrs) Attendance, South West Africa White 21% African 15% The measures taken to overcome this situation in the following forty years were inadequate to the task because South Africa felt that any increase in African educational facilities should be largely financed out of direct educational taxes on the African population itself, rather than substantially from South African funds.6 Token measures, such as the establishment of three African teacher training centres, did not begin to meet the need for teachers for the expanding African population, which was now increasingly dwelling in the Western environment of the towns but was educationally ill-equipped 195

INSIDE SOUTH WEST AFRICA to advance itself there. For between the World Wars, South West Africa experienced some of the increase of industrialization which so characterized growth in South Africa, and large numbers of people drifted to the towns and tended to adopt the dominant urban cultural life and Western values they found there. The Second World War accentuated this situation by creating a large labour shortage and thus increasing the demand and influx of Africans to the city. Thus by the end of the War, South Africa's policy of neglect had created a critical educational problem of inadequate numbers of teachers, schools and funds for its African schools in the Mandate. The educational statistics of the period, as reported in the recent South African inquiry into conditions in South West Africa, the Odendaal Commission Report, provide eloquent testimony to these deplorable conditions: (see Table 1, on pages 198-99). It is important to notice in these figures that the student-teacher ratio is much lower for the white schools than for the Coloured- and African, even though the latter's teacher qualification requirements were only a Standard IV education at the time. Also, the figures show the total number of African students and teachers compared to the smaller white school population and its relatively larger number of teachers reveal the basic disparity of the system. The figures do not demonstrate, however, that a large proportion of African school-age children are not even in any school. How large a number this is can be determined by using the Odendaal Commission's own total population figures and its assumption that 23% of this total represent the school-age population for each group, and then comparing this figure of ideal school-age population with the actual school-age population:7 Total Ideal School- Actual School- and Actual SchoolDate Group Population age Pop. age Pop. Population of Ideal 1936 White 31,200 7,176 5,545 77% Coloured 12,818 2,948 800 29% African 276,439 63,572 17,575 27% 1960White 73,464 16,882 16,257 99% Coloured 23,965 5,497 4,523 84% African 428,575 98,555 37,801 38% After the Second World War there was a chance that this educational situation might be changed in South West Africa, for the new policies of the Smuts government of 1947 gave tacit acceptance to 196

EDUCATION POLICY AND RESULTS economic integration of the races. The government's programmes proclaimed support for industrial and manpower development with opportunity for all groups in this growth, and planned for new urban housing and some recognition of African unions and political groups. But these plans were short-lived, for in 1948 the Nationalists got a majority in the elections, on a platform of racial segregation and separate development of the Africans in Bantu communities (apartheid).8 The Nationalists' platform had the support of various Afrikaner power groups, such as the Dutch Reformed Church, the Federation of Cultural Organizations and the Institute of Christian National Education. As a result, the party's policy toward education reflected some of the views of these groups in amalgam with its own basic racial policy. This policy was that education should be the primary method of inculcating its racial scheme in the minds of the young of all racial groups. For the whites, the values of Christian Nationalism, the Calvinist-inspired doctrine of creating a white Afrikaans society, should be a guide to education, while for nonwhites the values of tribal life, rural skills and separate communities should be taught. Therefore, with this policy in mind, education has become a central part of the edifice of apartheid which the Nationalists have built as a bulwark against the threatening development of a permanent, residential black population in its urban, industrial centres.9 It was no wonder that this doctrine of apartheid was implied among the first programmes to be introduced by the Nationalist Government, first in South Africa, then in South West. In 1949, the Union appointed a Commission on Native Education, known as the Eiselen Commission for its chairman,10 Dr W. W. M. Eiselen, then South African Secretary for Native Affairs. In its report to the government in 1951, the Commission recommended that:1 (a) African education henceforth be considered as one of the number of social services which should be organically integrated with the government's efforts to create and develop a Bantu culture; (b) To achieve this, African education should be removed from the missions and transferred to the Department of Bantu Affairs;

INSIDE SOUTH WEST AFRICA TABLE I Date 1925 1930 1935 1940 1945 1950 1955 1960 Group White Col'd Af.-N.S. Af.-S.S. White Col'd. Af.-N.S. Af.-S.S. White Col'd Af.-N.S. Af.-S.S. White Col'd. Af.-N.S. Af.-S.S. White Col'd. Af.-N.S. Af.-S.S. White Col'd. Af.-N.S. Af.-S.S. White Col'd. Af.-N.S. Af.-S.S. White Col'd. Af.-N.S. Af.-S.S. (souRcEs: Odendaal Report, Tables LXXIII, p. 223; LXXIV p. 225; and, LXXV and LXXVI, p. 227; 1924 was used as source for African, Norther, Date No. of Govt. Schools 45 0 0 71 3 0 63 1 0 1 54 1 0 2 53 1 0 6 51 2 0 6 66 3 0 8 54 5 0 13 No. of Miss. Schools 20 168 46 55 179 67 59 11 146 66 18 18 146 76 15 20 113 71 15 26 151 73 16 33 161 80 9 38 161 83 Total Schools 65 168 46 126 179 67 122 12 146 67 72 19 146 78 68 21 113 77 66 28 151 79 71 36 161 88 63 43 161 96

EDUCATION POLICY AND RESULTS OMPARISON OF WHITE, COLOURED AND AFRICAN EDUCATION IN S.W. AFRICA, 1925-1960 Pupils, Govt. 2,703 0 0 4,457 0 0 4,669 8 0 115 5,587 104 0 240 6,111 130 0 555 7,684 146 0 553 10,595 280 0 935 14,410 607 0 2,931 ,.;ot 1925; 1932 for African, Northern, not 1930; \iaot 1935 and 1940. 1939 for African, Northern, 199 Pupils, Mission 747 4,689 2,748 1,074 9,378 4,747 876 792 13,655 3,805 730 1,051 13,655 4,216 730 1,272 13,815 4,797 1,180 2,382 16,026 6,080 1,493 2,296 17,515 6,080 1,847 3"916 26,134 8,736 Total Pupils 3,450 4,689 2,748 5,531 9,378 4,747 5,545 800 13,655 3,920 6,317 1,155 13,655 4,456 6,841 1,402 13,815 5,352 8,865 2,523 16,026 6,633 12,088 3,240 17,515 7,893 16,257 4,523 26,134 11,667 Total Teachers 176 304 82 288 293 149 270 27 147 262 45 191 290 53 321 224 349 96 441 259 469 142 522 324 666 184 633 441 Number of Pupils per Teacher 19"6 15-4 22-5 19"2 32"0 31 8 20.5 29 "6 0 26.6 24.1 25 "6 23.3 23.5 26.4 43.0 23.9 25-4 26.3 36"6 25-6 25.7 22 "8 31.7 24"3 24.4 24.5 41-1 26.4

INSIDE SOUTH WEST AFRICA (c) In order to encourage Bantu development further, African parents and communities should gradually be given control over their educational system, but not until they had passed the 'threefold test of cash, competence and consent'; (d) The state should increase its share of financial support to African education to ensure the creation of these Bantu communities; (e) The state should set up a Bureau of Bantu Literature to encourage the production of Bantu literature, terminologies and reading material useful in schools, and the state should require the use of the mother tongue in African instruction; (f) Higher education should be planned in conjunction with the over-all scheme of Bantu development, and student aid for university study should be under the control of the Department of Bantu Education, not the South African Department of Education, Arts and Sciences, as before. The Commission hoped that under this new plan the goal of a lower primary education for all African children could be attained in ten years and that higher primary and secondary school education facilities would be adequate for the number of African pupils continuing the education course to these levels. To accomplish all this the Commission estimated that the government would have to spend about R20.5 million in 1959, compared to RIO million in 1949.12 The recommendations of the Eiselen Commission were quickly adopted by the Nationalist government and enacted as the Bantu Education Act of 1953.13 The government moved to apply the law as broadly and quickly as possible. The present South African Deputy Secretary of Bantu Education, Dr Hendrik van Zyl testified in September 1965, before the International Court of Justice in the South West Africa case, that in the ten years since the Bantu Education Act was introduced, the community schools had largely supplanted the mission schools, enrolment had doubled and school construction had increased the facilities by 50%.14 These steps toward a separate Bantu society had been made by either withdrawing funds from or banning the mission schools which would not surrender their facilities and introduce the Bantu type of education, and by increasing the funds available to the new community schools 200

EDUCATION POLICY AND RESULTS which supplanted the mission schools. Van Zyl's testimony failed to add that expenditure on education did not rise proportionately to the school population increase, so that expenditure per pupil had actually declined over the period, as the following figures indicate:'" EXPENDITURES FOR AFRICAN EDUCATION-SOUTH AFRICA Year Total Expenditure Cost per pupil Enrolment 1953-54 R16,032,494 R17"08 938,211 1955 R15,769,550 R15"68 1,005,774 1956 R17,277,660 R15"88 1,090,601 1957 R18,036,350 R15"78 1,143,328 1958 R17,990,126 R14"28 1,259,413 1959 R18,457,830 R14"10 1,308,596 1959-60 R19,473,200 R13"80 1,411,157 1960-61 R18,852,514 R12"46 1,513,571 1963-64 R23,664,900 R13-37 1,770,260 The policies of separate development were soon impressed upon the African peoples of South West Africa, as evidenced by the passage of the 1954 South West African Native Affairs Administration Act. Under this law, control over African affairs, though not education, was transferred to the South African Department of Bantu Administration and Development,'6 thus giving South Africa the authority to politically control and manipulate the non-white population of the territory. This act was followed in 1958 by the appointment of a commission to investigate the African education system in the South West. The group was led by Dr van Zyl of the South African Education Department and its report included the basic recommendations of the Eiselen Commission, adapted to apply to the South West African situation:17 (a) Community schools should replace mission schools; (b) Active participation and responsibility for the community schools should be encouraged among the African parents;

INSIDE SOUTH WEST AFRICA (c) A separate section for administering African education should be established in the South West African Department of Education; (d) The mother tongue of the various African groups should be the basic medium of instruction and the production of African literatue should be encouraged and subsidized; (e) The South African Department of Bantu Education syllabus, the so-called 'Amended Syllabus', should be adopted for African instruction, as well as the South African system of teacher training. These recommendations were obviously meant to facilitate central control over African education and ensure the development of a separate cultural community for each African group. The recommendations were fully supported by the government in Pretoria and over the next four years put into practice in the territory, despite the objections of the Anglican (but not the Finnish) missions, the Herero and Nama peoples, the AME church which runs the Nama schools in the South unassisted by the government, and the South West Africa Teachers' Association. Their provisions were codified in the Educational Ordinance of 1962.18 Dr van Zyl, in his recent testimony before the International Court, noted that by 1965 the community schools were well established in the Northern Sector, but were 'delayed' in the more urban Southern Sector, and that the Amended Syllabus and native language emphasis had been instituted successfully.19 While educational apartheid was becoming entrenched in South West Africa, it was being even more broadly applied in South Africa, as in such acts as the Extension of University Education Act of 1959. This act extended segregation to the university level where previously some integration had existed. Henceforth Africans were prohibited from attending the established universities in all but a few faculties, and were now required to attend one of the three new university colleges for Africans only. This law affected South West Africans, for lacking any facilities in the territory all its post matriculation students, African applicants applying to study in the Republic would be shunted to one of the Bantu colleges, the Bantu University College of the North, at Turfloop in the Transvaal.20 In 1962 another commission was appointed to inquire into South West African affairs, with the special directive to make recommen202

EDUCATION POLICY AND RESULTS dations for a general five-year plan of African development.21 The Commission Chairman was F. H. Odendaal, an attorney and currently the Administrator of the Transvaal. His group's findings provide us with a detailed picture of educational conditions in the territory, as well as various other economic and social conditions. Although education had been made compulsory for white students in 1921, it was still voluntary for the Coloured and Baster and African pupils.22 While the South West African Administration operated the bulk of the white schools, 89% of the Coloured-Baster, and 57% of the African schools were still run by the missions, despite the efforts to convert them to Bantu community schools.23 The white schools used the South African syllabus and the report says the African schools did also, but it does not make clear whether this is the Bantu syllabus. The African syllabus, though reportedly the same as the white, was 'adapted to suit local conditions'24 and was varied in content and method as 'determined by factors of culture, tradition and background.'25 White students since 1958 took the Junior Certificate examination of the South West African Department of Education and the Standard X examination of the Cape Province since 1960. Prior to that they took the South African Joint Matriculation Board exams. The Coloureds and Basters took internal exams through Standard V, part internal and part external exams for Standard VI, Junior Certificate exams from the South West African Department of Education, and Senior Certificate exams from the South African Joint Matriculation Board. However, African students were examined by their own schools through Standard V, by the Department of Education for Standard VI, by the schools again for the first two years of the Junior Certificate and by the Department of Bantu Education for the end of the Junior Certificate and for the Senior Certificate.26 But what the African examination system is in real practice is in some question, for the Odendaal Commission's description, above, differs from Dr van Zyl's testimony before the International Court. He said at that time that '. . . we have decided not to introduce a specific matriculation course or examination for the Department of Bantu Education'. Instead Africans in South West and South Africa 'are to write the matriculation examinations conducted by the Joint Matriculation Board itself or the examinations of the Department of Education, Arts and Sciences', the latter for students from technical and vocational schools.28

INSIDE SOUTH WEST AFRICA The report also reveals a racial differential in the matter of training requirements for teachers. While teachers for white schools needed post-matriculation training, available through bursaries at South African institutions, African teachers needed to have completed only a Standard VI (higher primary) course to be eligible for three of the four teacher training institutes in South West Africa. In 1961 the total number of Africans in teacher training was 154: 44 at the government school, the Augustineum at Okahandja north of Windhoek, 50 at the Catholic mission at Doebra near Windhoek and 60 at the two Finnish mission schools in Ovamboland.28 But the lower requirements for African teachers did not necessarily produce an adequate teacher supply, for the attractions of the job were slight. Salaries were very much lower for Africans than for whites, for one thing. Dr van Zyl explained this disparity, in his International Court testimony, as a function of the lower standards of living, and other lower development factors of these teachers and added that 'for the same reason, building and other equipment generally need not, and are not expected by the people, to be exactly the same as in the case of the other groups . . . On the whole, the savings that could be effected, have, I am sure, enabled us to reach the masses much more extensively than would have been feasible if the cost per unit had been as high as it is for white education'.29 Dr van Zyl's statements about unequal facilities are borne out by evidence given to the United Nations in 1958: 'Within the Police Zone in all the Reserves there are only two government hostels to enable the children who have to come from such long distances to remain at the school. One of these hostels is at and the other is at Waterberg. There are in all eight Herero Reserves. Only two of these eight have government schools with hostels attached. Six have no hostels but have schools for the children of the place where the school is. In distant parts there is no school for the children to attend.'30 The disparities of the whole system are further seen in the statistics from the Odendaal Report, in Table 2 (see p. 205):31 The policies of the South African government did nothing to halt the alarming drop-out rate among African pupils, beginning in the first few primary grades and increasing sharply, so that only a very few completed high school. This situation is most dramatically revealed in the statistics of attendance per standard (see Table 3, page 205):12

EDUCATION POLICY AND RESULTS TABLE 2 COMPARISON OF AFRICAN AND WHITE EDUCATION, SOUTH WEST AFRICA, 1962 No. of Area Govt. Schools frican: 22 Southern African: Northern White: No. of Total No. Total No. Mission Total No. of pupils of Schools of Schools Teachers 79 101 14,840 466 112 103 215 32,248 805 70 0 70 17,442 746 TABLE 3 WHIE, COLOURED AND AFRICAN STUDENTS IN SUCCEEDING STANDARDS, 1962 African-Southern African-Northern Standard White Coloured Sector Sector Sub A 1,960 1,471 6,033 16,315 Sub B 1,928 973 3,365 6,677 St.I 1,970 943 1,942 4,493 St. II 1,913 789 1,376 2,518 St.1I 1,709 725 891 1,248 St. IV 1,706 516 598 526 St. V. 1,651 394 346 284 St. VI 1,425 243 208 122 St. VII 1,218 75 58 46 St. VIII 924 66 17 19 St. X 527 28 4 0 St. X 326 12 3 0 A statistical analysis of the attendance per standard of the Africans in the different regions of the Northern Sector and the Southern Sector is needed to appreciate how appallingly low the attendance is after the first few years of primary school:33 205 A No. of pupils per Teacher 31'9 39-9 23"4

INSIDE SOUTH WEST AFRICA TABLE 4 TABLE 5 AFRICANS IN SUCCESSIVE STANDARDS, SOUTHERN SECTOR, 1962 206 Rural Areas 750 362 250 232 145 102 75 47 21 5 0 0 Standard St. A St. B St. I St. II St. I St. IV St. V St. VI St. VII St. VII St. IX St. X Homelands 1,564 845 501 340 214 132 88 61 0 0 0 0 Towns 3,687 2,158 1,191 803 532 364 183 100 37 12 4 3

EDUCATION POLICY AND RESULTS The provisions for financial assistance of university study in South African facilities are outlined in the Odendaal Report, with specific details given for the various bursaries and loans available to white applicants. Although comparable aid is listed as available for the Coloured, Baster and African students, the Report comments that the demand for such aid is 'negligible', and documents this by listing the total number of Africans who have applied for assistance since 1952. Two bursaries awarded for teacher training at the Emmarentia Geldenhuys School in the Republic in 1952; no applications between 1953 and 1960; 1961, two loans granted to matriculants for training at a university college, but not taken up; three students granted aid in 1962, who are at present being trained at the University College of the North in the Transvaal.34 South African policy towards Africans studying at universities abroad is not mentioned in the Odendaal Report, but it was dealt with in the International Court testimony of Dr Rautenbach of the Bantu University College of the North. He said that the government '.. . is not encouraging Bantu students to study overseas . . . but to retain them and make provision for them in South Africa' in order to develop the new Bantu colleges.35 'Scholarships are not awarded in branches (academic faculties) where a student can do his training in South Africa.'36 Visas are not issued to students unless they state their intention to return to South Africa, but in the case of some African students, he had heard that they had to promise not to return. He added that he did not know whether this latter provision was government policy.37 When cross-examined by Counsel Ernest Gross, Dr Rautenbach failed to agree with Mr Gross that it was significant that in 1964 there were six African students from South West Africa studying in the United States, according to a US Congressional study, while there were only three Africans from South West studying in all of South Africa.38 Dr van Zyl, in his testimony, said that the early drop-out of African students and the dearth of university applicants among the Africans in South West Africa was caused by the absence of any tradition of educational attainment or aspiration among the African parents, and the consequent failure of the parents to insist that their children stay at school. In cross-examination by Mr Gross, Dr van Zyl did not concede the possibility that the Africans were not interested in education because they knew they had the prospect of

INSIDE SOUTH WEST AFRICA future employment in the labouring class only and so had no incentive to obtain further skills.39 One seeks in vain in the Odendaal Report for a description of the financial arrangements for each racial group in South West Africa. There is no statistical analysis of revenues allocated for education of each group, only the amount spent for total educational services for white and non-white, in relation to the total voted for all services from 1951 to 1962.40 There is no definite statement of the amount contributed to education by the various authorities concerned, the Administration, the missions and the community authorities. The actual recommendations of the Commission had as their premise that among 'the groups such as the Whites, Basters and Coloureds, who have a well- developed educational tradition and who have moreover grown up in a reasonably developed environment, the level of education can be expected to be higher. In the case of the indigenous language groups, amongst whom a tradition of education has only recently begun to develop, an attempt must be made to promote literacy and general knowledge among the broad masses.'41 The Commission went on to recommend that: (a) The education of the African and Coloured population should be transferred to the South African Departments of Bantu Education and of Coloured Affairs.* (There is no reference to financial support between the South West African Administration and South Africa;) (b) The control and further provision of white education should be retained by the South West African Administration; (c) The programme of community schools and native language instruction should be extended so that the different African communities will have a greater share in the education of their children, by active participation in school boards and committees; * Of the total South West African education vote in 1963/64 of R4,683,880, the Commission would assign one-quarter (R1,170,970) to 'Non-White Education' (Coloured, Baster and African) and threequarters (R3,512, 910) to 'Education for Whites'. They propose that the Republic should be responsible for the former and South West Africa for the latter. Odendaal Report, p. 475.

EDUCATION POLICY AND RESULTS (d) The governing bodies of these African communities should be given a direct say in the establishment and control of their education system; (e) African education should be developed integrally with the various homelands; 1. The basis for expansion of the lower primary schools should be the systematic provision of education with the aim of serving 60% of the school-age population of each homeland by 1970; 2. Higher primary schools with hostel facilities be established at central places in the homelands; 3. Secondary schools and/or high schools with hostels be established at central places in the homelands as soon as the number of students justifies the step; 4. Educational facilities in the homelands be given governmental priority since they do not match those in the urban centres; 5. Further subsidies to mission schools should be for improvement of existing facilities, not for addition of new facilities; 6. Special attention should be given to creating new facilities for training African teachers; and a special course for training African women as teachers should be instituted in Ovamboland with the requirement of St. IV for entrance now. (f) All further expansion of educational services should be in the first instance the responsibility of the state or community authority concerned; (g) Compulsory education is recommended for the Coloured and Baster population, but not for the Africans. The Odendaal Commission recommendations mean that South Africa will now have absolute control over the direction of African education in the territory and that the costs of expansion of educational services will be largely paid for by the Africans themselves, the group least able to finance education from its slight tax base. The INSIDE SOUTH WEST AFRICA recommendation that the Africans should have a voice in their education, through the school boards in the communities, appears sound. However, if the experience of the Bantu school boards in South Africa is a guide to their application in South West Africa, these boards may not prove to be a progressive step. For in South Africa the board members must be acceptable to the Department of Bantu Education, so they may tend to become apologists for government policy. Also, the Department has the power to dismiss African teachers by withholding subsidies for their salaries from the school boards and to veto certain of the boards' decisions.43 The transfer of African education to the South African Department of Bantu Education means that its Minister can now close a school or any class for Africans at such times he deems advisable. He can prosecute any church authority or individual who establishes an African school without first registering it with his Department and using the Bantu syllabus. Ultimately it means that South Africa can regulate the African educational system, and manipulate it to its political advantage, while it has no such authority over white education in South West Africa. With the implementation of the Odendaal Commission recommendations in 1964, over the objections of several African groups,4" South West African education has become a figure in the pattern of segregated South African life. In defending this course of action at the International Court proceedings in 1965, the Republic's representatives failed to see that the Africans in the territory are being taught under poorer conditions and in inadequate numbers and are thereby doomed to become, not even a separate but equally educated people, but a cast of permanently submerged, tribally-orientated labourers. 1 Muriel Horrell, A Decade of Bantu Education (South African Institute of Race Relations, 1964), p. 153. (Henceforth cited as Horrell). 2 Republic of South Africa, Report of the Commission of Enquiry Into South West African Affairs, 1962-1963, R.P. No. 12/1964 (Pretoria, 1964), p. 219. (Henceforth cited as the Odendaal Report.) 3 Odendaal Report, p. 219. 4 Odendaal Report, pp. 221, 223. 5 Odendaal Report, pp. 223, 225. 6 Ruth First, South West Africa (Penguin Books, Penguin African Library, 1963), p. 163. (Henceforth cited as First.) 210

EDUCATION POLICY AND RESULTS 7 Odendaal Report, p. 29, footnote 1 says that the census figures come from the South African Bureau of Census and Statistics and the Department of Bantu Administration; actual population statistics given on p. 37. The figure of 23% used by the Report on. 227 is in line with the figure of 25% for the ages 5-14 used by UNESCO in INECA/UNESCO, Final Report, Conference of African States on the Development of Education in Africa, Addis Ababa, 15-25 May, (1961), p. 63. The group term, Col'd. stands for the Coloured and Baster population. First says that only two out of ten African children were attending school in 1962, First, p. 164, suggesting that the figure of 38% is inflated. 8 Horrell, p. 154-156. 9 I. B. Tabata, Education for Barbarism in South Africa (London, 1960), pp. 30- 32, 43-46. (Henceforth cited as Tabata.) 10 Union of South Africa, Report of the Commission on Native Education, 1949-1951 U.G. 53/1951 (Pretoria 1951). (Henceforth cited as the Eiselen Report.) 11 Eiselen Report, pp. 130, 132, 135, 145, 159-164; van Zyl testimony at the Public Sitting in the South West African Cases, International Court of Justice, the Hague, Verbatim Record (uncorrected copy of the unpublished Verbatim Record, in the possession of the Library of the International Legal Studies Center, Harvard University Law School), C.R. 65/71, pp. 22-23. (Henceforth cited as International Court, C.R. 65/71.) 12 Horrell, p. 12. 13 Van Zyl testimony, International Court, C.R. 65/71, p. 23. 14 Van Zyl testimony, International Court, C.R. 65/71, pp. 24-25. 15 Statement of F. J. de Villiers, then South African Secretary of Bantu Education, at a council meeting of the South African Institute of Race Relations, 1961, quoted in Horrell, p. 41, giving statistics for 1953-1961, 1963; in Memorandum to the Minister of Bantu Education from the South African Institute in Rand Daily Mail, September 22, 1964, and cited in Africa Digest, Dec. 1964, p. 86. 16 Odendaal Report, p. 53. 17 Van Zyl testimony, International Court C.R. 65/71, pp. 38-40. 18 Odendaal Report, p. 221; objections noted in First, p. 165 and in Van Zyl testimony, International Court C.R. 65/71, p. 39. 19 Van Zyl testimony, International Court C.R. 65/71, pp. 39-40. 20 Dr Caspar Rautenbach testimony, International Court, C.R. 65/73, pp. 28-64; Odendaal Report, p. 241; Horrell, pp. 121-131. 21 Odendaal Report, p. 3.

INSIDE SOUTH WEST AFRICA 22 Odendaal Report, pp. 235, 237, 241. 23 Odendaal Report, p. 223. 24 Odendaal Report, p. 237. 25 Van Zyl testimony, International Court, C.R. 65/71, p. 15. 26 Odendaal Report, pp. 233, 237, 239. 27 Van Zyl testimony, International Court, C.R. 65/71, p. 16. 28 Odendaal Report, p. 239. Enrolment in vocational training, given at the Augustineum was equally poor: 5 in woodwork; none in bricklaying and 16 in tailoring, p. 239. 29 Van Zyl testimony, International Court, C.R. 65/71, pp. 35-36. 30 First, p. 165. 31 Table compiled from the following tables in the Odendaal Report: White education, Table LXXIII, p. 223; Coloured-Baster Education, Table LXXIV, p. 225; African education, Tables LXXV and LXXVI, p. 227. 32 Table compiled from the following tables in the Odendaal Report: White, Table LXXXII, p. 233; Coloured-Baster, Table LXXXIV, p. 237; African, Tables LXXXV and LXXXVI, p. 239. 33 Odendaal Report Tables LXXXVI and LXXXVII, p. 239. 34 Odendaal Report, p. 241. 35 Dr Rautenbach testimony, International Court, C.R. 65/74, pp. 43-44. 36 Dr Rautenbach testimony, International Court, C.R. 65/74, p. 47. 37 Dr Rautenbach testimony, International Court, C.R. 65/74, pp. 48, 52. 38 Dr Rautenbach testimony, International Court C.R. 75/74, p. 49; Congressional study referred to was African Students and Study Programs in United States (Subcommittee on Africa, Committee on Foreign Affairs, 1965). 39 Van Zyl testimony, International Court, C.R. 65/71-72. 40 Odendaal Report, Table LXXXIX, p. 243. 41 Odendaal Report, p. 231. 42 Odendaal Report, pp. 243-263. 43 Horrell, p. 46. 44 Windhoek Advertiser, 17 August 1964, cited in Africa Digest, December 1964, p. 86.

Experiences as a Student and as a Teacher by Gottfried Hage Geingob, the United States of the South Peoples, Organisation Representative in West African A PERSONAL CASE HISTORY Virtually all African schools were mission schools at the time I commenced my schooling, so it goes without saying that I went to a Mission School. Since most of these were established with the aim of enabling African children to study Bible-reading, and also to enable them to write their own name, they did not, in many cases, offer classes above Standard 2. By the time I reached Standard 2 1 had no intention of leaving school so that I was compelled to repeat the same class for two more years, although I passed my exams in both cases. During the course of these two years, my teacher suggested that I order lectures for Standard 6 from South Africa, in order to pursue private studies instead of wastefully repeating the same class. I did follow his advice but I must confess that the South African lectures were above my comprehension. That being the case, the only alternative course open to me was to start thinking about the Augustineum, the non-European Teacher Training School which also by then was offering courses from Standard 5 up to Standard 8. 213

INSIDE SOUTH WEST AFRICA However, there were stumbling blocks, for in order to enter the Institution, one had to have passed Standard 4 before one could qualify for admission. However, through a favourable recommendation from my teacher, I was accepted to continue with my Standard 5 work on condition that I passed the first examination of June 1958 successfully. Before I start on Augustineum life, I would like to point out that the first seven years of my schooling were by no means easy. They required great cost of effort, willpower and sacrifice. I had to work part-time after school for three years in a shop belonging to a certain Mr Giinther for a meagre 15s ($2-15) a month at the age of 12. This was the only way I could buy my school books as well as amass the clothing I would use the first two years at the Augustineum. The day I set foot on the Augustineum soil I had mixed feelings. On the one hand I was exhilarated by the knowledge that I was now at the only 'African College', as we used to call it, without having the slightest understanding what the meaning of College was. Furthermore, I regarded the Augustineum as an institution of higher learning where students can be provided with the kind of education that teaches principles as well as facts; which builds character and develops understanding, transmits information and knowledge. I was thus seeking education from an institution that caters to the needs of students so that they can gain from it an ability to communicate effectively with other educated people. On the other hand, I was in a precarious and unsettled situation, for my stay there would be determined by how I would do during the first semester. The school reopened in the early half of January, 1958. No formal registration was required, so that the student was in no position to choose his subjects in accordance with his interests. These matters were left to the care of a 'Big Brother' staff. Theirs was the privilege of knowing the interest of the student and what subjects were best for each and every one so that the subjects that were assigned to me were as follows: History (South African) Religion Geography (Regional South West African and South African), and in Standard 6 a brief survey of the geography of Western Europe and the United States of America. 214

EXPERIENCES AS A STUDENT AND A TEACHER Arithmetic Physiology and Hygiene Nature Study Afrikaans English (a very rudimentary form) After completion of my primary schooling, I decided to pursue the two-year Teacher Preparation Programme, and it was during those two years that I saw the Augustineum in its true colours. It was also here that the stark reality of the objectives of the educational system of South West Africa struck me in full force. THE ADMINISTRATION AND FACULTY OF THE AUGUSTINEUM The teaching staff at the Augustineum are mostly whites - semiqualified rejects from white schools even on the primary level. So the Government, in order to give them employment, appoints them to positions of instruction at the Augustineum, where they give lectures to Student Teachers. What is worse, moreover, is that they are assigned to Junior Certificate and Matriculation classes as well. The Principals, the late Mr Steenkamp and, in 1961, Mr Roux, were the only teachers who had degrees. The rest had only Matriculation plus three years Teachers' Training. There were also three non-white teachers whose qualifications left much to be desired, but perhaps paradoxically they were in most instances better teachers. Augustineum is supposed to be a black man's school. The Administration has, however, not taken upon itself the task of training African teachers or importing them from South Africa for teaching positions at the Institution. The Government's conception of what non-European education should be, on the other hand, causes it to find it more expedient to find a ready substitute in the large number of drop-out white students. The Administrator of South West Africa once said, as reported in the Windhoek Advertiser, that the Augustineum is a black man's school and that the Administration hopes all the white staff will be replaced by black teachers once these have the necessary qualifications. However, this was proven to be just a red herring. After all, an application from Mr Jariretundu Kozonguizi was turned down even though his BA degree and Teachers' Diploma qualified him handsomely for a teaching position at the Augustineum. They 215

INSIDE SOUTH WEST AFRICA must have anticipated the embarrassment of having a black graduate teaching among all those unqualified white teachers - a black man whose qualifications were equalled only by those of the Principal. TEACHER-STUDENT RELATIONSHIP Being a student in the United States today, I have a full understanding of what is meant by the relationship between the student and his teacher. Students in South West Africa occupy a standing in relation to their teachers which makes a mockery of accepted standards throughout the world. The whole atmosphere at the Augustineum was permeated by the government philosophy of apartheid. In short, the relationship between student and teacher was a reflection of the same 'boss' and 'boy' relationship maintained by government decree in other spheres of society in the country. The student was constantly reminded that he was speaking to his superior and conditioned to the idea that his whole posture should be that of a subservient. He was required to jump to attention and take his hands out of his pockets at the sight of an approaching white teacher (incidentally, putting one's hands in one's pockets presumably suggested a defiant attitude one one's part). The student was not allowed to smoke in front of the teacher. Now, some clarification is needed, for those people who might think that smoking should not be indulged in by young people anyway. The fact of the matter is that the Augustineum is an adult school. There were and still are students who were older than their teachers. The prohibition was based on the same policy of paternalism that younger white people follow even in other areas of their daily contact with nonEuropeans, viz. that of white superiority. ACADEMIC FREEDOM Free inquiry and free expression are essential attributes of the community of students and scholars. As members of that community, students should be encouraged to develop that capacity of critical judgement and to indulge in a sustained and independent search for truth. The freedom to learn depends on appropriate opportunities in the classroom and the larger community. The responsibility to secure and respect general conditions conducive to the freedom to learn is shared by all members of the academic community. Students 216

EXPERIENCES AS A STUDENT AND A TEACHER at the Augustineum were not encouraged to partake in free discussion, free inquiry and free expression. Students are not evaluated solely on their ability to perform but on a general basis of their opinions or conduct on matters unrelated to academic activities, their degree of submissiveness and their conforming to the general rule of accepting the white man's superiority. Thus it happens that a student who has not acted in violation of the procedural standards or has not broken the disciplinary code, but who holds different views from his teachers, might quite often, when seen reading an English newspaper, be subject to untold forms of harassment, intimidation and even ultimate expulsion. PURPOSE OF AFRICAN EDUCATION African education under the South African Administration was once described by I. Tabata, the distinguished South African political author, as 'Education for Barbarism', which incidentally was the title of his work on the subject. The question with regards to the purpose of African education was put even more succinctly by the statement contained in the report of a departmental Commission on African Education: 'The education of the white child prepares him for life in a dominant society and that of the black child for a subordinate society . . . The limits (of an African child's development) form part of the whole social and economic structure of the country.' Such limitations on the education of black children, whether intended to encourage them to take positions in the service of their own 'communities' or to obtain the training that is necessary for a continuing position as labourer in the white industrial world, inevitably resulted in African education becoming materialistic and utilitarian. Therefore, it is no wonder that subjects like sociology, anthropology, philosophy, political science and psychology are not taught in the schools. No doubt a course in government will introduce the African student to concepts like 'democracy', 'mandate' and the like, and courses in sociology and anthropology will render the doctrine of white supremacy invalid and expose it as an ethnocentric neurosis. 217

INSIDE SOUTH WEST AFRICA Furthermore, it is noteworthy that this limitation on African education results in the frustration of talents and the stifling of natural aptitude in the student since those courses that he has an inclination for are among those, perhaps, that are excluded from the syllabus. The student is therefore never able to exercise his talents to the fullest extent. When some of these students ultimately become teachers, it can be imagined just what calibre of teachers they become. I was the product of the Institution - the Augustineum - at the end of 1961, after I had successfully passed both my teachers' course and National Standard 8 examinations. The task ahead was of stupendous magnitude; the noble profession of teaching was to be a road strewn with many difficulties. I assumed my duties on 21 January 1962 in the Rhenish Mission School at Tsumeb, the mining town in the north of the country. South West African schools and their children occupy a world apart from any thing. The fears, the desires and the diversions from accepted standards of elementary school education, are all features that make this world of South West African children such an anachronism. There is a striking difference between the syllabuses offered for African children and those offered for white children. For instance, European children at the lower primary level receive one subject entitled handwork, where the African children receive a total of six entitled drawing, cleaning work, weaving and claywork, needlework (girls), scrapwork (boys) and gardening. The existence of five additional subjects dealing, inter alia with cleaning work and scrapwork means, of course, that proportionately less time is devoted to the nine others, eight of which are paralleled in the European schools. Moreover, European children get more training in English, Afrikaans and arithmetic, environmental studies, health education, writing, music and religious instruction. The emphasis in the African school is, therefore, on manual subjects. In the higher primary courses the same pattern is repeated, except that the African school courses are extended to include gardening, tree planting and soil conservation, woodwork, leatherwork and handicrafts (boys). Of these only handicrafts is offered to the European children at the upper primary level. Those, then, were the courses in which I had to instruct my Standard I class when I took up my teaching job. 218

EXPERIENCES AS A STUDENT AND A TEACHER It is the official policy governing European schools that a teacher should not have more than 15-25 children in his class, to enable him to give greater individual attention to his pupils and also to pay attention to problem children, the 'slow' learners, etc. In contrast, there was no limitation on the number of children in African classrooms. Although I had only 35 children, there were cases where a teacher had 100 children at a time in his class. Now, even the best teacher in the world would, I believe, find it an onerous task to cope with a class as large as that and to give proper instruction under those conditions. He would find it very difficult to detect weaknesses or to determine the interest and aptitude of individual pupils. In addition to these conditions of overcrowding, there were the unattractiveness of the classrooms, lack of recreational facilities for the children and malnutrition. Some of the children came to school without having had a meal for the previous 15 hours or more, and it was quite obvious that they had no concentration for a stretch of five hours; they sat in the classroom preoccupied with their daydreams about where to get their next meal. It was equally difficult to give assignments to the children to do at home, knowing that their homes did not have proper lighting nor the favourable environmental conditions required for a child to work in. Besides, a child usually has to work after school for a livelihood. That time is used by his counterpart - the white child - to do his homework and prepare for the next day's school. It is precisely for this reason that the South African Administration is reluctant to introduce compulsory education in the territory, though this was viewed by the Permanent Mandates Commission as an important aspect of the duties of the Mandatory Power to promote the wellbeing and social progress of the indigenous population of the country. My colleague, Mr Kalenga, and I, in contrast with the Principal of the school, made teachers and pupils realize how both are denied the education that they are supposed to be given as a matter of rights. Because of our unfortunate situation, we argued, we had to cut down on daily intermission time and also our own private time in order to impart some extra knowledge to the children. We also stressed the importance of refraining from unnecessary corporal punishment required under the system and to replace 'beating' with counselling and tutoring. Apartheid, of course, is preached with the same intensity when it 219

- INSIDE SOUTH WEST AFRICA comes to the relationship among the different tribes as it is preached in black- white relations. Hence there is a Nama School, a Herero School and an Ovambo School in most of the towns. I am, however, pleased to state that in Tsumeb we only had one big school for all these groups and had to work very hard to fight the encroachment of the 'divide and rule' monster, so that our children, irrespective of their ethnic origin, regarded themselves as members of one school. Not only does apartheid thwart the social progress of Africans by isolating them from each other and from the modern world, but it is also impracticable and unworkable. THE TEACHER AND THE PARENT The teacher is probably the most respected member of the community. It is expected of him to go to church every Sunday. He has to lead a choir, and his frequenting of dances and other social activities is usually frowned upon. However, this applies mostly to small towns. That is the reason why most of the younger teachers feel that some innovations have to be made. Accordingly, younger teachers, unlike their veteran counterparts, banded together and partook of those activities that other young people occupied themselves with, i.e. dances, concerts and the like. Since the people have such a high esteem for the teacher, he could be one of the most influential persons who could be very useful in inculcating new ideas to the African community, but the South African Government, being aware of that, imposes the following inhibitions under the heading 'Misconduct' which makes a teacher in the service of a school board guilty of misconduct if he, among other acts: (a) Uses his position as a teacher to encourage disobedience or resistance to the laws of the state or propagates any idea or takes part in, or identifies with, any propaganda or activity or acts in a manner calculated to: (i) causes or promotes antagonism amongst any section of the population of the Territory, or (ii) impedes, obstructs or undermines the activities of the Administration or any body controlling an educational institution, or 220

EXPERIENCES AS A STUDENT AND A TEACHER (b) Contributes to the press by interview or in any other manner or otherwise publishes a letter or article criticizing, or making unfavourable comment on the department, any other state department, a school committee, a school board . . . In conclusion, I would be justified in stating that after most of the African teachers in South West Africa have taught for a few months, they realize that they have grave shortcomings and not enough training. That is why most of them gave up their teaching profession voluntarily and left the country after the announcement of the United Nations Special Training Programme to improve their qualifications. Furthermore, they realize that Bantu Education is a component part of the apartheid policy and that it is designed to foster and to inculcate a passive acceptance of racial inferiority among the African people while accommodating a myth of white superiority. I was among those who realized these facts and decided to give up my profession and to avail myself of the higher educational facilities found abroad for South West Africans.

The Odendaal Report: Social and Economic Aspects by Absolom L. Vilakazi, Senior Social Affairs Officer, U.N. Economic Commission for Africa 1964-65; Professor of African Studies, American University, Washington D.C. On 21 September 1962 the Official Gazette Extra-Ordinary of South West Africa, No. 2430 published a notice of the appointment by the Republic of South Africa of a Commission of Inquiry into South West African affairs and its terms of reference were as follows: 'Having regard to what has already been planned and put into practice, to inquire thoroughly into further promoting the material and moral welfare and the social progress of the inhabitants of South West Africa, and more particularly its non- white inhabitants, and to submit a report with recommendations on a comprehensive five-year plan for the accelerated development of the various non- white groups of South West Africa, inside as well as outside their own territories, and for the further development and building up of such native territories in South West Africa . . . '... the attention of the Commission is particularly directed to the task of ascertaining - while fully taking into considera222

THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS tion the background, traditions and habits of the native inhabitants - how further provision should be made for their social and economic advancement, effective health services, suitable education and training, sufficient opportunities for employment, proper agricultural, industrial and mining development in respect of their territories, and for the best form of ratification by the natives in the administration and management of their own interests. The Commission is empowered to investigate any other matter which, in its opinion, may be of importance in this connection, including the financial implications and the manner in which any appropriation of funds should take place.' As a general comment on the terms of reference, it is perhaps relevant to point out that the Commission is specifically asked to do its work within the context of 'what has already been planned and put into practice'. The planning content was, therefore the apartheidoriented socio-political structure. It is not surprising that the Commission proceeds in a number of pages (55, 75, 315, 333, 427, 515) and in different contexts, to argue the rightness and appropriateness of separate development and to exclude any other possibility in the line and strategy of development. Nowhere in the Report do the Commissioners ever try to test the basic assumptions of separate development or to examine critically the assumption on which apartheid thinking is based: the thesis that racial differences imply cultural and spiritual differences. Apartheid is the sacred principle of organization which, we are told, will ensure harmonious development. POPULATIONS A matter of considerable interest, of course, is to know about the peoples in whose behalf the planning is to be done. They are the indigenous peoples of South West Africa who belong to different tribal groups which are not themselves antagonistic to one another. In fact some are as close as the English are to the Scots but the philosophy of apartheid postulates mutual hostilities and antagonisms among these people, although the same is not held to be true for the Germans and the South African Afrikaners who have been introduced into the territory. The Bushmen, probably among the oldest inhabitants of the

INSIDE SOUTH WEST AFRICA territory, are, as a people, short with yellowish skins andconsist of the following groups: the Khaung, Heikum, and the Barakwengo, with several other unspecified groups. Their traditional mode of existence is hunting and they move around from place to place in search of their food. Some have, however, settled down and have been drawn into the economic life of the Southern section of the country. Altogether, they form 2.24% of the total population. The Damara who constitute about 8"43% of the total population are scattered all over the territory as labourers. They do not seem to have any kind of central authority in their tribal organization, and they are reputedly good copper and iron smelters. The , like the Bushmen, constitute what is generally referred to as peoples, and are generally referred to by whites as Hottentots - a term which they resent. They are short of stature and are of a lighter hue than the Damara. There are two groups of the Nama: those who settled in their present lands before the other tribes did and the so-called Oorlams or foreigners who passed through the country on their way South, settled across the Orange River and returned to South West Africa before the pressure of the White settlers; speaking Cape Dutch and using horses and rifles in the eighteenth and nineteenth centuries, the Nama clans have welded themselves into a united people by an agreement known as 'The League of Nations', signed by all their chiefs in 1858. By this document, they pledged themselves (a) not to allow mining in their territories without the knowledge and concurrence of all, (b) not to sell their lands to the Whites from the Colony, (c) not to wage war against their Herero neighbours without legitimate cause and (d) to consult one another once a year. Their traditional structure is patrilineal, and they are ruled by elected chiefs chosen from traditional ruling families. The chief rules through a Council which acts as a limitation on his powers. The Bantu-speaking Herero consist of two groups: the Herero and the Mbanderu. They form 6.72% of the population. They are essentially a cattle-keeping people and their cultural traditions and practices share many of the features of the cattle- keeping Bantu-speaking peoples of South Africa. They are the people who had the fiercest encounters with the Germans and who were decimated from a people 80,000 strong to a shattered and widely scattered group of 15,000 as a result of these wars. Their resilience as a people has been commented upon by their German chronicler, Dr Gunter Wagner 224

THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS who studied their economic life. He testifies to their resilience and their ability to recuperate from setbacks. The Ovambo and Okavango peoples, easily the most numerous of the African groups, constitute 50% of the country's population. They are closely related and both these peoples occupy the Northern parts of South West Africa. The Ovambo are matrilineal, i.e. descent and inheritance are traced through the mother, and they have a welldeveloped political organization under traditional chiefs. They are traditionally herdsmen and peasant farmers who eke out a precarious existence on the flat, grassy, stoneless plains in the Northern regions. With in the North and the Police Zone (the white area) to the South of them, the Ovambo and Okavango are virtual prisoners in their so-called 'home-lands'. To go out of their areas they need permits. They are important for the economy of the territory for they supply the manpower for almost all the economic undertakings in South West Africa. There are some eleven thousand Rehobothers, the so-called Basters of the Rehoboth Gebiet. They are descendants of the whites who settled in Rehoboth in 1870, and the indigenous women. They are, therefore, like the but the South African fashion is to distinguish them from the Coloured and to form them into a separate 'race' which, like the Coloured 'race', is urged to keep itself pure! The Coloureds came to South West Africa from South Africa as immigrants and now account for about 2.42% of the population. They work in the territory mainly as teachers, artisans and as fishermen at Walvis Bay. The South African attitudes of the Coloureds and their economic advantages over the Rehobothers have managed to keep these two groups apart. The Coloureds have accepted segregation from the other Non-Whites because they still believe the illusion that they are the appendages of the Whites. The East Caprivians who constitute about 3% of the total population are Bantu- speaking and are closely related to the Lozi and the Makololo of Zambia. They are primarily mixed farmers, being tillers of the soil and herdsmen. The Tswana are related to the people of Bechuanaland. Finally, there is a sizeable group of Whites who constitute about 14% of the population. They are made up of the descendants of the early German immigrants and a greater and growing number of South Africans - mainly farmers and civil servants. The South

INSIDE SOUTH WEST AFRICA Africans are mostly Afrikaans-speaking and of Nationalist political persuasion. When the Nationalist Government came to power in 1948, it went all out to woo the Germans. This was easy in view of the fact that the Nationalists were vigorously opposed to South Africa's entering the war against Hitler. Just before the 1958 elections, the South African government granted the German-speaking population of South West Africa the language rights they had enjoyed before the Second World War. Then, immediately after the elections, they were rewarded with pensions! These were bestowed on European veterans of the German army who had served in wars in South and West Africa before 1920. It was done by Ordinance No. 31 of 1958 and as a result some 270 Germans who had fought against South Africa were to receive £46,000 a year. The racial composition and political tensions in South West Africa are best summed up in Ruth First's book as follows: 'Here then are two South West locked in conflict. The whites, a monolithic political force, heavily armed because South Africa is heavily armed, monopolise the government and its various benefits. They are richer than they have ever been, selfassured, intransigent, but just a shade uneasy now at the changing world beyond their borders. The African tribes and other non-White communities display an astonishing divergence in origin, customs and history. But their common experience of white rule is shattering all divisions and shaping in their stead a common cause. They carry on their back not only the burden of the White Man who lives his good life by their labour but also the tragic burden of their history.'" LAND DISTRIBUTION It now becomes important to look at the distribution pattern of the population. This is influenced by several factors; the first being the original areas of settlement of the different groups and the nature of the land; and the second the diversified economy of the Southern sector which has given rise to towns and huge industrial and mining complexes. Africans have been drawn to these 'poles of attraction' from the Northern areas for employment. The South African Government's policy of apartheid has played an important role here. Apartheid decrees which part of the country shall be reserved 226 THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS to which race and renders parts of the country foreign to other ethnic groups. The general pattern of reserving the lion's share of the land for the whites, which obtains in the Republic, has been extended to South West Africa. Related to the whole general question of the distribution of land is the important consideration of the value of the land allocated to the different racial groups. It is a particularly important consideration in a country like South West Africa where the general conditions of the soils and climate are not very favourable. Gordon Lawrie of Johannesburg, in his analysis of the Odendaal Report3 examined this problem simply by superimposing a transparent copy of the different Homelands on maps of topography, soil types, registered boreholes and rainfall supplied by the Commissioners (figures 3, 6, 62 and 5). This showed that white farmlands were above 4,000 ft; that they were composed of 'C' soils which appear to be of comparatively good agricultural quality and provided with relatively good underground water. The rainfall map showed that the Homelands have their fair share of rainfall. Since the Commission's instructions were to study and recommend action to the Government, taking into account what had already been planned and put into practice, it seems to have understood its task as one of tidying up the country to conform to the idea of complete territorial apartheid. The recommendation to create Homelands can be seen therefore as the logical development of what the government had already planned and put into practice. As part of the 'tidying' up of apartheid, huge population movements are to take place. Except for the Ovambo and the Okavanga and the Caprivians, most Non-Whites do not live in tribally-consolidated areas. The Hereros, Damara, the Nama and the Bushmen will have to move. The figures of populations which will move are shown by Lawrie4 in proportion to the gain in land area as follows: 74% of the Hereros will move and their area is increased by 45%. 87% of the Nama will move and will double its area. 94% Damas and 95% Bushmen will be moved to new areas as they did not have any lands of their own before. An unknown number of Whites will move from farms incorporated into Homelands. Similarly, large numbers of Coloureds will be moved to their townships in Windhoek and Luderitz. When all the shifting of populations is accomplished and Homelands will have become a reality, about 40% of the land will belong 227

INSIDE SOUTH WEST AFRICA to the Africans and other Non-Whites while 44.12% will belong to the Whites. It is perhaps important to point out here that all Town areas and all diamond lands will belong to the White population. So also will the greater part of the economic infrastructure of the country. GOVERNMENT So far as the government of South West Africa is concerned the present position is summarized by the Report in paragraph 172 as follows: (a) Full and final administrative and legislative authority over South West Africa vests in the Government of the Republic of South Africa. (b) The Administration of Native Affairs now vests in the Minister of Bantu Administration and Development who is competent to transfer powers to the Administrator as a member of the Bantu Affairs Commission of South Africa. (c) The Territory's Legislative Assembly has legislative and executive powers in respect of those matters which are not reserved to the Government of the Republic of South Africa and may, in respect of these reserved matters, recommend to the Parliament of the Republic of South Africa that legislation in respect of the said reserved matters be passed, amended or repealed. What, then, are the recommendations of the Commission in connection with the future government and Administration of South West Africa? First, the Commission recommends that only the proposed White area should be administered by the Territorial Administrator, Executive Committee and Legislative Assembly, the latter to consist, as at present, of eighteen Europeans elected by European voters of the Territory. It is further proposed that the powers and responsibilities of governing and administrative bodies be curtailed and that more and more powers be transferred to the Republic of South Africa. While the Whites are allowed certain powers to be exercised through their legislative council, and complete control over White education, health services, roads, local authority and townships, public works, personal and income tax, Non-European affairs remain directly under the jurisdiction of South African Ministers. Thus all Non-European education, health, transport and taxation will be in 228

THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS the hands of the South African Government. This, of course, follows the general pattern of affairs in South Africa, and is a convenient arrangement which makes it possible for the South African Government to say that advances, improvements or expansion of services in the White areas are financed from White taxes, and that the Africans and other Non-Whites cannot have similar services in their areas without paying for them. This is economic apartheid, familiar to students of South African affairs, by which the poorest section of the community (and one which is kept poor by design) is expected to pull itself up by its own bootstraps. In other words, this is a stratagem by which the wealth and resources of South West Africa - its diamonds, its copper, its fish, its lobsters, its karakul are all exploited for the exclusive benefit of a racial minority, for the profits and the tax money derived from them go to the Whites. The eleven Homelands, it is proposed, should have their embryonic legislative councils which will come under the tutelage of the Bantu Administration and Development (BAD) department in the Republic and from which they will gradually take over and assume complete control. A very serious issue is raised by the Commission's recommendation that the Homelands are conceived as separate states with separate citizenships, so that the people of one Homeland will be foreigners in that of another group. This amounts to a total dismemberment of South West Africa and raises the question of what the ultimate purpose of the Mandate really is. One would have thought that the Mandate's territorial integrity was to be maintained; that the peoples of South West Africa would not be divided into small, economically non-viable entities and its inhabitants taught to be suspicious of, and antagonistic to, one another. The welfare of the territory would seem to suggest that the different groups should be welded together into a national group, with common loyalties and symbols and that Black and White should be taught to co-operate in the building not only of the economic life of the country but also in its social and cultural life. The proposed policy of apartheid will not promote the interests and welfare of the inhabitants of the Territory, but seems designed to frustrate them. It seems to be planned entirely in the interests of the South African Government; and the Commission's observation that 'the Government of South Africa no longer regards the original mandate as still existing as such' (para. 176) would seem to support our contention. It is the reasoning

INSIDE SOUTH WEST AFRICA behind this observation, we suggest, which informs the tacit assumption in much of the report that the changed conditions of the Mandate confer full sovereignty to the Administering authority instead of only the responsibility to administer the Territory in conformity with the principles of the whole Mandatory system, in trust for the inhabitants of the land. As we have observed above, the main feature of the report, in so far as Government is concerned, is a studied attempt to prepare a rationale for the further extension of the system of apartheid throughout the Territory; and to make it the basic principle of political, economic and social organization, as in South Africa. The claim that the different tribal groups in South West Africa are different nations with inherent incompatibilities sounds a little hollow when it is remembered that Afrikaner, English and German groups are not regarded as separate nations. Cultural and linguistic differences do exist among Africans, but they are no greater in intensity than they are in Belgium, Switzerland, Ghana, Zambia or Tanzania. Besides, on the basis of their own principles of classification, it is difficult to explain why the Afrikaners, the Cape Coloureds and the 'Rehoboth Basters' are distinguished. The Coloureds and Basters are Afrikaners - albeit of a darker hue - but still Afrikaners. They share the same language, the same religion, the same cultural traits, and they are even genetically related. To suggest, as the Commission does, that the cultural and linguistic differences in the territory make a central government impossible does not seem to accord with the historical record, for multicultural and multi-lingual states do, in fact, exist. We would argue that the logic of the facts given by the Commission on page 55 of the report would seem to indicate that the function of a mandatory power is to lead the peoples of South West Africa towards the achievement of common values, a common society and a common citizenship, by emphasizing not the differences as if they were immutable, but the common interests, common goals and the common destiny of the peoples of the country of South West Africa. To try to divide a population of 526,000 people into eleven homelands, each with its own citizenship 'which should continue to exist as such and become increasingly independent' (p. 79, para. 292), is an exercise, not in trusteeship but in the 'divide and rule' technique of a past and discredited era. Professor Julius Lewin's summing up of what the Odendaal 230

THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS proposals really mean for government and administration are a fitting comment on this question. He observes that the political and administrative proposals '.. . will reduce the present Legislative Assembly in Windhoek to a status lower than that of a Provincial Council, for there will be, eventually, a number of other local legislatures to discuss the affairs of the eleven ethnic groups. Each group is thus promised the scent (if not the fact) of local government in a limited range of minor functions not yet defined. The scheme faithfully reflects the orthodox theory of apartheid and the strategy adopted by its advocates. They hope to blind their opponents with a dusty cloud of legal, constitutional and administrative technicalities. If and when the Africans or Coloured people ask for bread (and, if possible, an occasional slice of cake), you give them an indigestible constitution and hope that they will then live happily ever after! . . . Finally, the close integration of South West Africa with the Republic will raise suspicions because it is not in the spirit of the Mandate, and it is really meant to place obstacles to any attempt by the international community to pry South West Africa loose from the Territory of the present rulers.'5 Another problem, closely related to the general one discussed above, has to do with the Non-White population in the urban areas, The Commission begins by pointing to the influx of Non-Whites into urban areas. What complicates matters, of course, is that the men who come into urban areas bring their families with them. The Commission recognizes that the influx of people from the rural areas is stimulated, inter alia, by facilities for education and medical care created by the Administration in the urban areas. The Commission makes some interesting recommendations in order to solve these problems: (1) In order to enable the Non-White inhabitants to retain and continue their connections with the Homelands, the Legislative Council of each Homeland shall have the right to appoint a local member of its group on the Council if its number of citizens over the age of 18, resident in the Non-White residential area of the town or township justifies the appointment of such a member, so that these

INSIDE SOUTH WEST AFRICA representatives might be of assistance in the promotion of the interests of their respective citizens. (2) In addition to appointed members, the permanent residents over the age of 18 in a Non-White township would elect members to the Council who must not constitute less than 60% of the Council. (3) The qualifications and disqualifications of the members of the Council, as well as those of voters shall be prescribed by regulation by the Minister of Bantu Administration and Development. (4) The White Council should submit to the Non-White Council proposed laws and regulations for consideration and comment but shall not be bound to accept any comments or recommendations of the non-White Council . . . etc. The proposals of the Commission proceed on the assumption that apartheid is an acceptable operational principle in ordering the lives and affairs of people in South West Africa; and no effort is made to test the feelings of the Non-Whites on this matter. It is a legitimate complaint of the Non-Whites that the Commission does not seem to recognize that South West Africa's wealth and market places belong to all its citizens and not just to the Whites. To make the cities and the industrial areas the preserves of the Whites, is to deny the NonWhites their fundamental rights and to hamper them in their legitimate pursuits of economic well-being. The fishing industry, the diamonds, the copper, and the whole industrial complex of the territory ought to be open to all. Africans, who certainly can claim prior rights of residence over white settlers, should be free to sell their goods and labour without hindrance and should not be discriminated against in regard to residential areas, education, health and other social services. The recommendation of the Commission that tribal authorities should be sent to the cities to regulate the affairs of urban dwellers reflects a curious adherence to a discredited anthropology which supported a discredited system of colonial rule. It is also a means of perpetuating a political myth that Africans are foreigners in urban areas and that they can only enjoy rights and amenities in their own areas; for the Commission here adopts the doctrinaire view that urban areas belong to the Whites. No attempt is made to appraise the situation afresh. The economic forces of South West Africa, as in South Africa, are such that the flow of people from the rural areas to the industrial centres cannot be stopped. The improvement of the rural areas and large-scale developments are important, and every-

THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS thing should be done to hasten this development, and to train Africans in the techniques of self-rule. But this should not be done for apartheid ideological reasons. The schools and hospitals and roads and other social services are needed because the Trustee has done little to carry out its very-much-hallowed trust. Much of the work in the area of social services has been done by the missionaries. HEALTH In a general statement on health, the Commission states that there are a few features regarding the particular composition of the population which have a direct bearing on the availability of the health services. The Commission's modesty in this regard is remarkable. The figures supplied disclose a very clear and direct bearing of the racial factor in the provision of medical services. The distribution of hospital beds is as follows: (p. 163). Whites Non- Whites In Government hospitals 182 1,540 In private state-aided hospitals 246 18 In Mission and Church hospitals 294 1,670 In private Mine hospitals 82 145 In private Maternity homes 58 Total: 862 3,373 Population served: 73,464 436,700 Ratio of beds to population 11.7/1,000 7.6/1,000 If we take, as a measurement, the distribution of maintenance expenditure as reflected in returns for 1961 as an index of the quality of service rendered we get the following picture: (p. 151). The disproportion in allocations between White and Non-White services is significant. Add to this the important consideration that the White group is the privileged one economically and politically, and that the incidence of disease can be expected to be much higher in the Non-White group than among the Whites, and one sees the extent to which the racial composition of the population very seriously affects the availability of health services.

~IIIIz_ INSIDE SOUTH WEST AFRICA GOVERNMENT HOSPITALS AND CLINICS (NON-WHITE) Beds Windhoek Gobabis Walvis Bay Grootfontein Luderitz Omaruru Otjiwarongo Usakos Mariental Kub Runtu (Okavongo) 306 116 88 148 162 64 32 102 123 30 64 33 132 Whites Windhoek Viodsrif Clinic Maintenance Expenditure (Rand) 180,812 13,989 25,002 33,959 26,500 22,455 11,079 33,389 19,405 8,502 20,005 26,604 24,233 440,934 232,188 3,212 235,404 The Commission pointed to the close relationship between the need for medical services and the hygienic practices and standards in any community, especially with respect to contagious diseases caused by contaminated food and water. In this connection, the Commission found that the different cultural groups varied widely in their habits and that except for the Whites and the Coloureds, the standards of personal hygiene for, i.e. the Bushmen, the Ovakimbas and the Ovatjumbas (Kaokovelders) and the Okavangans, were very low indeed. This state of affairs, if true, would seem to indicate that in the field of social education and betterment, very little has been done to lead the indigenous population to a better appreciation of the im234

THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS portance of hygiene. It raises the question of whether the rigid segregation policies recommended in the Homelands scheme are not really tantamount to consigning the African populations to the miseries of sickness, disease, ignorance and superstition which are responsible for the present sorry state of affairs. In view of the quotation (para. 718) from the WHO report to the effect that - 'In Africa, ancient tradition, long-standing customs and the mistrust of innovations brought into the village from outside, all stand in the way of progress,' - it seems odd that they, the Commissioners, should have proceeded to recommend a system which would entrench the very things which, they agree, are impediments to progress. Africans seem to need not apartheid but more exposure to modern and progressive methods of living. The Commission report supplies sufficient evidence to show that its 'trust' has been discharged for it by foreigners, in the form of missionaries who have subsidized the South African government in its primary task of providing health and educational services. It is true that the Government has made small subsidies to the missions (para. 723) but it seems to regard this as having been an act of magnanimity. At another point on the same page, the statement is made in dealing with the Ovambo, that the Administration had derived no revenue from Ovamboland to pay for such services as were necessary. The subsidy was granted from the general revenue of South West Africa as a whole (para. 723). This is intelligible only if one accepts the apartheid frame of reference. The State has a responsibility to provide services, especially when it is charged with, and accepts, a trust. The whole argument can only make sense if economic apartheid and what it implies (that the poorest sections must be taxed directly for their services) are accepted. Besides, from 1955, when the Administration of Native Affairs was transferred from Windhoek to Pretoria, the South African government took direct control of funds to be spent on Africans. South West Africa is required by law to make certain annual payments to the Mandatory: a sum equal to 1/40th of its expenditure, other than from development funds, in the preceding year's budget; and a fixed annual sum of R100,000 for 10 years from 1955 onwards, to be entered in the South African Bantu Trust Fund to the South West African development account. The taxes paid by Africans into Tribal and Trust funds are also vested in South African control. It is not strictly accurate, therefore, to say that the Ovambo pay nothing; 235

INSIDE SOUTH WEST AFRICA for in the Northern Territories the compulsory tribal levy, payable by all men over eighteen years of age, regardless of income, ranges from R1 to R2 a year. In Ovamboland the tax may be paid in grain, but during the recent drought, broken only in 1963, the area produced for several years too little grain even for local subsistence. In fact, the tax is heavier on poor Africans than on poor Whites. A white wage-earner with less than R70 a month pays no tax at all. Not so for the Africans. SOCIAL DEVELOPMENT AND WELFARE SERVICES The section of the report on Social Development and Welfare Services points to interesting features of South Africa's handling of the problem in South West Africa. Again, the approach is a segregationist one. There is a series of ordinances in force in South West Africa which provide for the payment of old-age pensions, disability grants, pensions to the blind and pensions to resident German war veterans who fought against Africans in the territory or against South Africa itself during the First World War. These are noncontributing pension schemes payable from the public revenues of the Territory. Until 1962, such pensions were limited to Whites only. By the Social Pension Amendment Ordinance of 1962, the old age, disability and blind persons' pensions or grants were extended to Coloureds in the Territory, though on a discriminatory basis: the minimum entitling a white person to a grant is fixed at a higher rate than for a Coloured, and the maximum payments for the Whites are higher than those for the Coloureds. The Africans, who form the majority, and whose wages are often lower than the minimum fixed for the receipt of social pensions, are excluded from public pension schemes. The Commission report explains the omission of Africans in the following words: 'In the case of most Non-White population groups who adhere to their traditional way of life, no reference can be made to organized welfare services, since such organizations did not exist. Such services as were rendered gradually evolved from the exigencies of their particular living conditions and were more in the nature of folk customs than of organized welfare services.' (para. 916) It seems suggested from the above quotation that the African peoples are considered as falling outside of the legal population of 236

THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS South West Africa with legitimate claims to the benefits which are dispensed to the Whites and the Coloureds from public funds. Relief schemes also exist, on a discriminatory basis for the Whites, Coloureds and the Basters excluding, however, the Basters in the Rehoboth Gebiet who receive relief from their Volksraad or Advisory Board. Whatever relief Africans receive must come from the South African Ministry of BAD in Pretoria. The Commission reports that rations were given to the indigent, aged and physically and mentally handicapped. The fate of the young indigent, the young blind and handicapped is not discussed. The usual South African explanation is that these must look to their indigent families in the reserves for relief. The Commission's attitude towards housing, juvenile delinquency, institutional care, welfare and charity and illegitimacy is determined by the grand principle and the grand design of apartheid. It seems necessary, however, to call attention to the unfair practice which the Commission recommends of sending the aged and the destitute to the tribal areas. The Government might as well send aged South African Coloureds and Whites back to South Africa or wherever their parents or grand-parents came from. But no amount of persuasion can convince the apartheid-orientated government that these people are permanent residents of the urban areas. The practice is unfair because the tribe raises people and when they are young and strong the cities or so-called white areas claim them so they can work and produce wealth there. It is not equitable to ask the Homelands or Reserves to take back those who have been broken and maimed by the industrial areas. The responsibility is clearly for the sector which has used the people and in which they have lost their youth. The practice of sending these aged and destitute people to the reserve amounts to asking the poorest section to subsidize the sick section of the community. It may also be noted that the report deals with 'social welfare services' mostly from the point of view of ambulance services at the bottom of the cliff. Nowhere in the report is there a reference to positive programmes of community development such as one encounters in many developing countries. This seems to be a serious omission, for if the indigenous populations are ever going to stand on their feet and govern their own country, then community development programmes which emphasize training in administration, higher education, self- help in housing, improved health, would all 237

INSIDE SOUTH WEST AFRICA play a prominent role in the plans envisaged. Instead of coming up with such proposals, the Commission recommends the perpetration of an administrative system whose aim is to kill the hopes and aspirations of African peoples. No reference is made to farmers' co-operatives, no recommendations for massive training in technology and in the arts of government, and no suggestions are forthcoming for the weaning of the peoples from the traditional ways of life which are cited by the Commission to explain the lack of progress and difficulties encountered either in the health field, in educational matters or in the provision of social services. In 1948, the Trusteeship Council of the UN expressed its views concerning the advancement of the indigenous populations under apartheid in the following words: 'The Council is of the opinion that any arbitrary division of the indigenous inhabitants and their allocations to fixed areas is not conducive to their general advancement and that the system of confining the indigenous inhabitants to Native Reserves is to be deplored.' There has been no development in the Territory which would alter the validity of this opinion. Finally, a note on some aspects of the economy which seem to us to be significant for the development of the Homelands as recommended by the Commission. The Commission saw the economic future of the Non-White groups throughout the Territory either in stock farming or in one form or another of mixed farming. Taking the most optimistic view of the picture as painted by the Commission, it amounts essentially to this: that in all the Homelands, the Africans can, at best, eke out a meagre existence and they will be forced to continue to go out to seek work in the Southern white sector. Given the frequent droughts and scarcity of water in the Territory, the lack of technical skill and finances to develop whatever underground water potential may be present, the prevalence of animal diseases which, up till now, the government of the Republic of South Africa with all its resources has not been able to control, and the traditional patterns and attitudes of life which are not compatible with modern methods of farming, it is clear that the Homelands plan proposed will inevitably condemn the indigenous people to a low subsistence level of existence. The fact of the matter is that the White farmers have been able to improve their farms because of massive financial aid and assistance from their administration. 238

THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS It is also important to note that no arrangements whatsoever have as yet been made for markets for the produce of the northern areas. It is stated that the agricultural economy of the northern reserves is largely dependent on livestock, and that in future, they may have as many as 30,000 head of cattle available for export from the entire north. That does not seem to show much of an economic potential to finance a Homeland or to provide adequate outlets for a future educated people. Within the Police Zone, the prospects for Africans are even grimmer. The majority live in 'white' areas where opportunities are limited. Those living in African reserves inhabit poor areas that require them to go outside to work and earn money. It does seem as if little realism, if any, informs the recommendations of the Commission. The recommendations are inconsistent with the finding that the African populations in the so-called Homelands are illiterate and totally lacking in the scientific approaches which the proposed schemes would assume. The Commissioners ignored the fact that until now, the Republic of South Africa with its enormous technical and financial resources, has failed to control the animal diseases in these areas. They readily admit that there are no reliable methods of determining the occurrence of the dreaded cattle lung disease, that there is no reliable vaccine, and yet they proceed blithely to map out a course of action for the Homelands' authorities and optimistically predict a prosperous future for the Africans there. Having proposed apartheid as a panacea, it seems necessary, apparently, to proceed on the assumption that the problems which have hitherto proved insoluble to the Republic of South Africa would suddenly yield to the magic touch of apartheid development programmes. The fact that Africans throughout are peasant subsistence farmers who have not had any training at all in a market agriculture; whose cultural backgrounds and social institutions and attitudes could, in fact, stand in the way of development (as the Commission itself testifies when it refers to values regarding cattle), made very little impression on the Commission. If it ever stopped to think of these problems which it quoted to excuse the lack of development in the past, then the Homelands proposals would have struck it as being absurd. The problems of the viability of the economies proposed did not seem to have troubled the Commission at all! In our view, this attitude really amounts to the abdication of a trust rather than giving the indigenous people an opportunity to do 239

INSIDE SOUTH WEST AFRICA things for themselves. There are neither administrative skill nor scientific institutions in the Homelands to undertake and support the proposed tasks even if South Africa were to guarantee to meet the costs; and to pretend otherwise is sheer humbug. If the South African government sincerely wants to give the Non- Whites a say in their affairs, why not give them the vote within the framework of a unified South West Africa? Why not give them equal educational, social and cultural facilities? Why not absorb them into the administration now; not as 'boys' or messengers but in important positions? Why not give them technical training and governmental experience and responsibility? The stock answer from the South African Government is that Africans are not adequately developed for higher posts in public service, education, health and the teaching professions. When it is politically expedient, however, it is said that they have reached a standard when they can take care of their own affairs. At several places, the Commission suggested that vegetable gardening could be a useful and lucrative occupation for the Africans in the Homelands. One is impressed, however, by the Report of the Minimum Area of Farms Commission, South West Africa, 1946, which pointed out that 'from the evidence submitted, it seemed that, owing to the limited local markets and the intensive competition from the Union of South Africa, it does not actually pay to grow vegetables in South West Africa.' (p. 37) This applied particularly to the Southern sector where a local market existed; and there is nothing in the Odendaal Commission Report to suggest that this situation has changed. The situation would be worse for vegetable garden farmers in the Homelands because not only would they not have the territorial market, where they could compete with the Whites in the South; but they would also have no markets in their own areas for several reasons. Firstly, the African populations in the Homelands would all be on a subsistence level and would have no money to buy from each other with. Secondly, and perhaps much more important, is the fact that in foods as in occupations, there are cultural traditions. African peoples in these areas do not have a 'vegetable' tradition in the European sense of the word, and would not, therefore, buy vegetables, even if they were available and they had the cash to buy them. This is attested by Dr Vedder who, in an essay on the Berg Damara says: 240

THE ODENDAAL REPORT: SOCIAL AND ECONOMIC ASPECTS 'For what vegetables are to the European in regard to good health, that is 'veldkos' to the Berg Damara. When this is withheld from him, he often takes ill of scurvy . . . His means do not allow him to purchase vegetables, and even if he had the means, he would not do so as they are strange to him and he has not acquired the taste for them.'6 Altogether, very scanty details are given on what African development means. Does it mean more and better land? Does it include land banks, loans for farmers, assistance with seeds and fertilizers and tools and veterinary services? There are very few positive proposals for development, and the possibilities are expressed in tentative language as: 'Ovamboland may be expected to develop a sound agricultural economy . . .; 'For Caprivi, the possibility of dried fish could be investigated . . . ; '. . . in , during times of good rainfall, it appears possible to cultivate kaffircorn'. The recommended trend is more apartheid, not less. The proposed fragmentation of South West Africa is arbitrary. The answer to South West Africa's problems and the case of the African peoples is integration and a greater sharing of the country's wealth and benefits, not more apartheid. The economic gap between the white developed area and the Homelands will be widened and not narrowed by the proposals of the Commission. 1 Ruth First, South West Africa, pp. 56-57. 2 Odendaal Report, p. 142. 3 Gordon Lawrie, African Studies, Vol. 23, nos. 2-3, 1964. 4 Ibid. 5 Julius Lewin, Rand Daily Mail (3.3.64). 6 Dr. H. Vedder, The Native Tribes ofS. W.A., p. 77.

The Defence Position by Richard Gott, Co-author of 'The staff writer for the Guardian: Appeasers' 1. SOUTH AFRICA'S DEFENCE Few problems agitate a modern state more than that of defence. South Africa is no exception. Her concern for the future of South West cannot be divorced from her strategic interest in retaining the Mandated Territory as a buffer state against predatory northern neighbours. In particular, the Caprivi Strip provides an excellent base for any deterrent action that the South African Government might wish to launch against hostile black African states. South Africa's growing interest in defence and advanced weaponry is comparatively recent. It is also well known and it is unnecessary to go into it in any detail here. It should, however, be briefly mentioned that the South African Defence Budget in 1965/66 was $322,000,000 - a five-fold increase over the 1959/60 figure. Consequent upon the United Nations' imposed arms embargo, it included $70,000,000 for the domestic manufacture of modern weapons under foreign licences. South Africa's reasons for increased defence spending have gone 242

THE DEFENCE POSITION through three distinct phases. In the period up to 1960, when the defence budget was comparatively small, South Africa regarded herself as an ally of the West in the struggle against Communism. She did not expect to be involved directly in a possible 'hot' war, but her crucial strategic position between the Indian and the Atlantic Oceans ensured that the West would always accept her proffered friendship. In 1960, after Sharpeville, South African spending became increasingly geared to maintaining internal security. But with the independence of black African states in the rest of the continent and the mounting campaign against South Africa in the United Nations, defence planners turned to the problem of defence against external attack. Obviously contingency plans must now include the possibility of preventive action against other African states as well as action against a United Nations-supported naval blockade. Zambia, in particular, has been concerned by the South African military build-up. There is little doubt that, in spite of the arms embargo, South Africa has - or soon will have - sufficient arms and equipment to fulfil either plan. Weapons formerly acquired abroad are now being manufactured at home. A look at the Defence White Paper (SA) for 1964 is sufficient to note the changes which have been taking place. The Johannesburg correspondent of the Financial Times wrote as follows (4 June 1964): The strength of the permanent force has increased by over 65% in 4 years, while over 7 times as many men as in 1960 are receiving 9 months military training in the Citizen Force. Secret strategic airfields for operational purposes are being built in various parts of the country, in addition to existing military airfields. More than £65mn. worth of major defence equipment has been bought since 1960, apart from a naval expansion programme, the first part of which has been completed. Given this colossal military build-up, which has continued unchecked since that time, it is not difficult to see why the South African Government is unwilling to part with South West - a Territory which in strategic value alone is worth more to South Africa than several years' defence budgets put together. There are three reasons why South Africa should be especially interested in South 243

INSIDE SOUTH WEST AFRICA West at the present time. They all concern the imminent changes likely to occur on the borders of South West. First, Angola. If the African revolt against Portuguese rule results in the establishment of an independent black African state, a new threat to South African security would be created. Secondly, Bechuanaland. The independence of Bechuanaland in , and the establishment of the new state of , brings black Africa to the frontiers of South Africa itself for the first time. Thirdly, Southern Rhodesia. The downfall of the Smith regime will result in another black African state being set up along the banks of the . According to the terms of the Mandate, South Africa is not permitted to set up military bases in South West. Nevertheless, since South Africa's security depends to a large extent on retaining South West, she has not been slow to develop facilities within the Territory for future military use. In this paper, the degree of militarization in South West will first be examined, followed by a renewed look at the possibility of sanctions against the Mandatory Power. 2. SOUTH AFRICA'S MILITARY INVOLVEMENT IN SOUTH WEST The following extracts from the Report of the Committee on South West Africa to the United Nations (1960) give some indication of the nature of South Africa's military activity in South West. This report, it should be noted, was written at a time when it was relatively easy to secure information from South West, and before the South African Government had made the already mentioned phenomenal increases in its defence budget. E. Military and internal security measures. 237. It will be recalled that on the basis of information published in South West Africa and Union Government Gazettes, the Committee had reported to the General Assembly at its fourteenth session that the Union Department of Defence maintains a military camp at Windhoek and a military landing ground in the Swakopmund District of South West Africa.1" (All references given at end of this extract.) On the basis of a statement made by the then Union Minister of Defence in September 1958, the Committee had further reported that the Union Government also planned to establish a military training school in the

THE DEFENCE POSITION Eastern Caprivi Zipfel, a 'Native' reserve in the northeasternmost part of South West Africa, to enable the armed forces to adapt themselves to the true conditions of war which may arise in tropical parts.173 The Defence Minister reaffirmed this intention in June 1959,174 but statements later made by the Union Minister of External Affairs at the 900th meeting of the Fourth Committee indicated that by September 1959 the Government did not intend to establish a training school but only to carry out mancuvres in this area.175 238. Additional information now available to the Committee now reveals that between 3 and 26 August 1959, during what the Union Department of Defence described as a large-scale exercise in the Eastern Caprivi Zipfel, attended by the former Minister of Defence, the Secretary and the Deputy Secretary for Defence in their official capacities, two squadrons with 12 Harvard aircraft and one squadron with two helicopters participated in tactical operational exercises from , the administrative headquarters in the reserve. These exercises included border patrols, low-level navigation, area reconnaissance signals communications, search and survival, and investigation of the possibility of taking over the airfield at Katima Mulilo by the Defence Department as well as mosquito and tsetse-fly control measures.176 239. From other information supplied by the Union Government to the Union House of Assembly in 1960, the former Minister of Defence made a 'visit to a military camp during reconnaissances in the Kaokoveld' in 1957.177 The Kaokoveld is a 'Native' reserve in the northwesternmost part of South West Africa. 240. According to a letter dated 28 June 1960 received by Mr Sam Nujoma, a copy of which he made available to the Committee, the Union Government was stated to be carrying on military operations between the Cunene river, in the north of the Kaokoveld, and Obmandja. An enclosed newspaper clipping from a local Afrikaans newspaper, otherwise unidentified, stated that employees working on the construction of a canal in Ovamboland disclosed that there was a military air base on the border.178 The canal is under construction in the 245

INSIDE SOUTH WEST AFRICA northwestern part of Ovamboland, to extend to the Cunene river, bordering the Kaokoveld.79 241. Since the Committee's previous report to the General Assembly, further information has also become available with respect to the military camp at Windhoek. At the 900th meeting of the Fourth Committee, the Union Minister of External Affairs explained, inter alia, that the 'so-called' military camp at Windhoek consisted of a few buildings which dated back to the time of the German regime, and the total Union Defence Force personnel in Windhoek numbered seven or eight.'80 According to more recent information, supplied to the Union House of Assembly by the Union Minister of Defence in reply to questions,18' the strength of the Regiment Suidwes-Afrika on 1 December 1959 was 16 officers and 205 other ranks. It is a regiment of the South African Armoured Corps of the Citizen Force,l82 which forms an integral part of the South African Defence Force in terms of the Defence Act No. 44 of 1957, an Act applying to South West Africa as well as the Union of South Africa. Firing practice with live ammunition was to be carried out by the Regiment on 20 July 1959.13 242. The Regiment was established on 1 December 1939,14 the same year that the Union Government first extended its defence legislation to South West Africa, integrating the defence services of the two areas.185 The defacto recognition of defence facilities and the automatic extension of Union defence legislation to the Territory was consequently never considered by the Permanent Mandates Commission of the League of Nations. Several members of the Permanent Mandates Commission had, however, cited the possibility of such measures in principle as one of the grounds for opposing the administration of the Territory as a fifth province of the Union of South Africa.'88 243. The Committee can understand the necessity for posting a military regiment in the Mandated Territory in December 1939, but finds itself unable to reconcile the present military measures with Article 4 of the Mandate.'87 244. The Committee must also bring to the attention of the General Assembly the fact that the combined South African Defence Force was being reorganized during 1959 and early 246 THE DEFENCE POSITION 1960 to place greater emphasis on internal security measures. In this connection, the Minister of Defence stated, inter alia: 'Attacks by subversive elements can today best be beaten off by fast, lightly- armed security forces. 'Internal security operations necessitate the distribution of Citizen Force units throughout the country. 'The headquarters of the units must be placed strategically in relation to possible trouble areas, but must also be located so that the concentration and equipping of troops can be completed with the least delay.'18 245. Effective 1 January 1960, the name of the Citizen Force Regiment Suidwes- Afrika was officially changed to the 'Regiment Windhoek.'19 It will also be recalled that the Union Government has obtained a route through Southern Bechuanaland which, the Minister of Defence stated, 'can be used as a military entrance' to South West Africa. 246. In view of the reorganization of the defence services for the purposes of maintaining internal order, the Regiment Windhoek appears to be supplementary to the police force. The integrated Force stationed in the Police Zone area of the Territory falls under the control of the Union Minister of Justice, a post assumed at the end of 1959 by the former Minister of Defence. It had a strength of 529 (309 'Europeans' and 220 'Non-Europeans') in 1957, including 42 members of the Security Branch (C.I.D.). The 'European' police are required to be at least 16 years of age with at least nine years schooling if they are under 17 years and eight years of schooling if they are older. 247. There are also additional police within the Police Zone under the control of urban local authorities, subsidized by territorial expenditure in regard to their activities in 'Native' locations, as well as local police under the control of the Union Department of Bantu Administration and Development in the northern 'Native' reserves outside of the Police Zone. 248. From the recent military measures undertaken by the Union Government in the Territory, it would appear that the 247

INSIDE SOUTH WEST AFRICA Mandatory Power has been anticipating disorders in the Territory, a development which reflects seriously upon the system of administration imposed in South West Africa. 249. The Committee therefore reiterates its deep concern with respect to the military measures undertaken in the Territory. Taking into account the Government's use of aircraft in recent months to frighten and disperse crowds, the Committee sees no reason to assume that exercises carried out over the Eastern Caprivi Zipfel by the South African Air Force are any less frightening and disturbing to the inhabitants of that 'Native' reserve. The Committee accordingly calls upon the Union Government to cease such military exercises in the Mandated Territory. The Committee also believes that the establishment of a military camp in the northwestern 'Native' areas of the Territory and the maintenance of a regiment of the Armoured Corps of the Citizen Force in the capital of the Territory has increased the prevailing unrest in the Territory. Considering the responsibility of the Mandatory Power to maintain law and order in the Territory, the Committee regards it as essential for the fulfilment of that responsibility that the Union Government comply and ensure compliance with the Mandate, which is the supreme law of the Territory, binding upon the Union Government. 173 A/4191, para. 85. 174 Union of South Africa, Senate Debates, 24 June, 1959, cols. 5104, 5105. 175 A/C.4/421. 176 Union of South Africa, Hansard, 26 February 1960, cols. 22642267. 177 Ibid., 29 January 1960, col. 577. 178 A/AC.73/3. No. 48. 179 A/AC.4/427. 180 A/C.4/421. 248

THE DEFENCE POSITION This general indictment of the military activities of South Africa in South West should be compared with the evidence before the International Court, given by an American, General S. L. A. Marshall, who had visited South West for twelve days during 1965. MR MULLER: 'General Marshall, will you indicate whether there is anything which you saw in South West Africa which you could regard as being a military base, or whether the Territory as such is a military base, in your opinion? GEN MARSHALL: 'My answer is no. May I add that the Territory is less militarized and more under-armed that any territory of its size I have ever seen in the world.' (I.C.J., 13 October 1965) Under cross-examination, General Marshall indicated that the phrase 'military base' was in fact a very general term. He would not describe the installations he had seen as comprising military bases. Nevertheless it was pointed out to him that the existing installations were capable of rapid expansion. Obviously, there is nothing in South West Africa that could compare with what we traditionally regard as a military base: Aden, Singapore, 181 Union of South Africa, Hansard, 29 January 1960, cols. 594-596. 182 Ibid., 6 February, col. 509. 183 South West Africa Gazette, No. 2202. 184 Union of South Africa, Hansard, 29 January 1960, cols. 594-596. 185 Union Proclamation No. 234 of 1939. 186 League of Nations, Permanent Mandates Commission, Minutes of the Twenty-sixth Session, Nineteenth Meeting, 9 November 1934. 187 Article 4 of the Mandate reads: 'The military training of the natives, otherwise than for the purpose of internal police and the local defence of the territory, shall be prohibited. Furthermore, no military or naval bases shall be established for fortifications erected in the territory.' 188 Fortnightly Digest of South African Affairs, 11 December 1959, pp. 10 and 11. 189 Union Government Gazette, No. 2202. 249

INSIDE SOUTH WEST AFRICA Simonstown. But it remains to be seen whether the installations at various points in South West will be legally considered to be in breach of the instructions given in the Mandate. Of course, for its geographical size, South West is under-armed by Western standards. But considering its tiny population and its distance from any major hostile power, this is hardly surprising. Since the passage quoted from the report of the United Nations Committee on South West comes from the period before the South African defence budget increases, it is necessary to look at the situation since then. The following quotations come from the Report of the Special Committee on the situation with regard to the implementation of the Declaration of the Granting of Independence to Colonial Countries and Peoples, 28 September 1965. (A/6000/Add.2) Chapter IV, South West Africa. PAGE 17 'A R4 million jet airport near Windhoek was expected to be completed and in operation by May 1965, and other new airports costing about RI million each were under construction at Grootfontein, in the "White area", and at Ondongua, the administrative headquarters of Ovamboland.' The South West African Administration was reported to be engaged in 1964 in road construction projects costing R16 million . . . 'In January 1965, it was reported that road-building equipment worth R200,000 was being supplied by three Johannesburg firms to open up previously inaccessible parts of the Eastern Caprivi Zipfel Native reserve.' PAGE 27 Evidence of Mr Sam Nujoma, President of SWAPO, to the Special Committee: 'In violation of the Mandate, South Africa has established military bases, in Windhoek, Walvis Bay and at Katima Mulilo in the Eastern Caprivi Zipfel. In addition, several landing strips have been built in the area. A campaign has been started to mobilise Europeans in what were called "unit commandos" for training in all types of arms, and White settlers from the age of 17 to 60 were being trained in the use of automatic weapons.' 250

THE DEFENCE POSITION 3. THE BASES It is against this general background of military activity that we must look at three specific examples: Walvis Bay, Windhoek and the Caprivi Strip. Walvis Bay is, of course, part of South Africa and not included in the Mandated Territory. It is, however, administered from Windhoek. (a) Walvis Bay The 374 sq. mile area known as the Port and Settlement of Walvis Bay was annexed to Britain in March 1878. In 1884 it was annexed to the Cape Colony and it became part of South Africa in 1910, formally part of the Green Point constituency. Although it is South African territory, it is included - for administrative purposes - in South West Africa. The following excerpt from the Johannesburg Star, 25 September, 1962, gives some indication of the present military set-up at Walvis Bay. 'Walvis Bay is rapidly changing from a fishing town to a military base. This transformation comes eighteen months after the Russians moved into the rich fishing grounds off Walvis Bay, and follows the threat of disturbances spreading from the Congo into Angola. . . . In the second half of 1961 top-ranking military officials visited Walvis Bay to choose a suitable site for a training camp. It was decided that the military authorities would take over the old airfield which the municipality was vacating. 'The airfield was to be moved out to Rooikop 11 miles from the town because the old airfield was in a built-up area. 'The services took over the site on October 1 last (1961), and a few days later the first construction unit arrived. By the end of last year fair progress had been made. 'Last February Cmdt G. M. McLaughlin arrived from to take over command of the new training base. 'The first batch of trainees to arrive here will leave at the end of this week and will be replaced by a further 400 from Oudtshoorn. 'The military airfield is to be used for refuelling long-range 251

INSIDE SOUTH WEST AFRICA reconnaissance aircraft, such as the Shackletons, which carry out extensive air patrols along the West Coast. It will also be used for jet fighters on training flights. The Navy has taken an interest in Walvis Bay and regular calls are made by frigates which carry out operational cruises every month up the coast. Coastal defence gun emplacements are being sunk along the main road between Walvis Bay and Swakopmund.' There is also believed to be, according to a report in the Windhoek Advertiser, sufficient space at the base for accommodation and parade grounds to cope with between 5,000 and 7,000 men. (b) Windhoek The airport at Windhoek was described in the Evidence of General S. L. A. Marshall (USA) before the International Court, 14 October 1965. 'It is a large hangar and in that hangar are weapons. The hangar is surrounded by two fairly high fences, they are not barbed-wire fences but simple wire with a space of about ten yards in between them, and the door is covered by one sentry. We got into the hangar and I found in there twelve Ferrets Ferrets are a small armoured car, standing about as high as I do, built somewhat in the shape of a small tank, they are a reconnaissance vehicle - eight of these mounted a 30 calibre machine gun. They open and close as does a tank, that is, the driver is either driving battened down so that he is looking through a periscope or else he is in the open air. These were the modern vehicles in the place and then, behind these there were six Mark 4 armoured cars and six light tanks, all of them World War II material, and half of them were out of commission - a little more than half were out of commission. Some of them did not have their tracks on, others had their turrets off. Then, there were sixteen miscellaneous vehicles, World War II jeeps, trailers, three-quarter ton trucks and, besides these items which I have described, there was a six-pounder gun, which they told me was used for ceremonial purposes.' 252

THE DEFENCE POSITION (c) The Caprivi Strip From the strategic point of view, the Caprivi Strip is the most interesting part of South West. As can be seen from the following extract from the Odendaal Report (page 49), it has had a curious administrative history. Ever since 1890, when it was secured for German South West Africa by the German Chancellor, Caprivi, under an Anglo-German Agreement, it has been an integral part of South West. But it had a chequered history after 1914. 'This area, the Eastern Caprivi, which was occupied by Rhodesian troops in 1914, was administered from Bechuanaland for a time and that arrangement was confirmed by Proclamation No. 19/1922, dated the 21st December 1921, by the GovernorGeneral of the South African Government by which authority for the area was granted to the British High Commissioner for South Africa in the capacity of Administrator. 'By Proclamation No. 23/1922 by the High Commissioner provision was made for the administration of the Eastern Caprivi as though this were part of Bechuanaland and for the enforcement of the laws of this Protectorate in the area. 'Proclamation No. 196 of 1929, dated the 4th of August 1929, by the Governor- General of South Africa, however, repealed Proclamation No. 12/1922 and placed the Eastern Caprivi under the South West Africa Administration until 1939 when the 'Eastern Caprivi Zipfel Administration Proclamation', 1939 (No. 147/1939), vested control and administration in the Minister of Native Affairs of South Africa. From that date the Eastern Caprivi has therefore been administered direct from the Republic of South Africa. Legislative powers in respect of the area were, however, reserved to the Governor-General and reaffirmed by the South West Africa Amendment Act 1951. (Act No. 55 of 1951), subject to the final authority of the Parliament of South Africa.' The U.N. Committee on South West commented as follows: 23. 'With regard to the administration of the Eastern Caprivi Zipfel, the Committee again questions whether the administrative

-______r INSIDE SOUTH WEST AFRICA separation of any section of the Territory is conducive to the attainment of the objectives of the Mandate system. The Committee reiterates the opinion that such a separation is likely to prejudice consideration (b) of the 'General conditions which must be fulfilled before the Mandates regime can be brought to an end in respect of a country placed under that regime', approved by the Council of the League on 4 September 1931, namely that 'It (the Territory) must be capable of maintaining its territorial integrity and political independence.' (League of Nations, Official Journal, 12th Year, pp. 2056-2058.) The Committee considers that any administrative separation of any portion of the Mandated Territory would place obstacles in the way of the fulfilment of this important condition laid down by the League of Nations. In this connection, the Committee notes that the Prime Minister of the Union stated in Parliament on 1 June 1951 that the reason for placing the Eastern Caprivi Zipfel under direct Union administration was the inaccessibility of the region to South West Africa. The Committee, realizing that the Eastern Caprivi Zipfel can be reached from the administrative centres of the Union only through non-Union territories, is not convinced that the direct administration of the region by the Union has, in fact, made it more accessible to the centres of administration.' The Caprivi Strip is almost inaccessible from the rest of South West on account of the swamp. A long canoe journey up the River Mashi is possible, except during the rainy season when this route too is impassable. Bordering as it does on Angola, Zambia, Bechuanaland and Southern Rhodesia, it is, of course, of strategic significance. It is here that a new air base is being constructed at Mpacha, some 16 miles from Katima Mulilo. The construction of this base was first noted by President Kaunda of Zambia at a press conference on 3 June 1965: '... On the international situation I wish to state how greatly disturbed we are here in Zambia that the South African Government has chosen to build an £8,000,000 air base at somewhere in the Caprivi Strip. This is an obvious threat to Zambia and I want to state quite clearly that we do not intend 254

THE DEFENCE POSITION to be intimidated into silence by any such activities. An air base such as the South African Government is building in the Caprivi Strip is, as I say, a direct threat to Zambia's integrity. We intend following this up in some other way which I am not prepared to say anything about at the moment. I know that they have moved to this site very heavy machinery worth £2,000,000 which they are using for constructing this airbase; obviously the fact that they can move to this site machinery worth £2,000,000 is an indication that they intend to get on with the job very quickly. My Government is watching the situation very carefully and if anything develops further naturally we will let you know.' After an early denial that the base was being built at all, the South African Government described it as an emergency landing strip for South African Airways' jets on the long round-Africa haul - caused by the refusal of the black nations to allow Dr Verwoerd's planes airspace. (Guardian, 22 November 1965.) However, Nicholas Tomalin of The Sunday Times spent five hours in Katima in December 1965 and succeeded in sending back the following report. 'It was enough to discover that, despite the South African denials, the base is a big military operation. The 16-mile road from Katima to Mpacha is the smoothest and widest in Caprivi. Sixty White South Africans from the Transvaal are working at top speed to complete the base urgently. 'The airstrip is I of a mile long and 50 feet wide. The main reason why it is not already completed is that there is a major difficulty in bonding the loose Caprivi soil into a firm surface.' (The Sunday Times, 19 December 1965.) 4. THE STRATEGIC INTEREST OF SOUTH AFRICA IN SOUTH WEST South Africa has many reasons for wishing to hold on to South West, but, as has already been emphasized, the strategic one has been produced only recently. Such a crucial piece of the Territory as the Caprivi Strip was neglected and, as has been shown, the South African Government was quite happy for the Strip to be administered from Bechuanaland in the early years of the Mandate.

INSIDE SOUTH WEST AFRICA The strategic interest in South West began when South Africa was reconsidering her entire defence policy in the light of the independence of black Africa and the gradual withdrawal of enthusiasm by Western countries for close defence links with South Africa. Geographically, her need for South West is unarguable. The New York Herald Tribune (5 July 1963) commented: 'South African says it needs the territory for defense purposes. It argues that the long coast line and desert stretches can help to keep a possible invader from the north at arm's length.' In the Defence vote debate in the South African Parliament in 1961, Mr Fouch6, the South African Minister of Defence, said that it was the duty and the responsibility of the South African Government to protect the Territory. There would naturally be those abroad who would very much like to see that we do not take steps to protect South West Africa. This would enable them to gain advantage from the Territory's long borders and coast. The White and Non-European population of South West Africa can rest assured that we will not allow this. The Minister recognized in his speech that the League of Nations Mandate laid down that no naval base and military defences can be built in the territory. This restriction he said, referred to permanent bases and defences . . . 'The Government are taking immediate steps to bring the necessary military forces to Walvis Bay - a territory which although it is administered as part of South West Africa is South African territory.' The Government would not hesitate to move troops northwards from Walvis Bay if it regarded the situation as threatening. Given South Africa's interest in protecting South West, a brief look at communications with the Territory is necessary, with a comment on South West's frontiers to the North and East. (a) Communications The railway from South Africa enters South West at the S.E. corner 256

7 THE DEFENCE POSITION of the country. South of Keetmanshoop, one branch reaches out to the coast at Luderitz, while the other heads north to Windhoek and then turns west to Swakopmund and Walvis Bay. North of Walvis Bay, at Karibib, a line branches northward again to Tsumeb and Grootfontein. There is no railway communication between South West and Angola nor between South West and Bechuanaland. Nor is the Caprivi Strip served by a railway. The railway in South West does not pass near any of these frontiers. The 'backbone' railway in Angola runs horizontally from Benguela on the coast across to Katanga and hence comes nowhere near the South West frontier. Bechuanaland effectively has no railway, though the main rail link from Cape Town to Salisbury runs through its territory. Although formerly of narrow gauge, the railway in South West is now of the same gauge as that of South Africa itself - an important factor in providing reinforcements rapidly. (b) Angola Much of the joint frontier between South West and Angola is marked by two rivers: the Cunene which rises near Novo Lisboa and eventually reaches the sea. At Matala, on the Cunene, the Portuguese Government is planning to build a hydro-electric dam that will serve South West Africa with electricity. It is being financed by the South African Government. The Kubango rises in the same area but travels south-east, crossing the Caprivi Strip and eventually losing itself in the Makarikari Salt Pan south of Maun in Bechuanaland. South African activity in this area can only be gleaned from occasional references in the Press. The Windhoek Advertiser, 9 June 1961, wrote, under the headline, 'Military forces arrive to patrol SWA borders,': 'Six Dakota aircraft of the South African Air Force landed at Keetmanshoop. It was later learnt unofficially that the planes left for the border area between South West Africa and Angola. The aircraft had soldiers on board to be posted to the boundary.' Later, the same paper (27 June 1961) took up the story again: 'Mobile Watch is ready to meet any trouble in the North.' 'The military machine of the South African Defence Force is organised to act with speed and effectiveness in the event of 257

INSIDE SOUTH WEST AFRICA possible spreading to South West Africa of the terrorist activities in Angola. Careful planning and mapping has been done in the North following intensive reconnoitering. Runways in the Caprivi Strip and at Ohopoho are ready to provide landing facilities and radio stations, both mobile and stationary, will transmit vital communications. 'A study has been made of the tactics the terrorists have used in launching their attacks and it is believed that Portuguese military authorities have supplied information for this. ' The question of a defence agreement between South Africa and Portugal has often been raised, but there is no conclusive proof that one exists. The South African Foreign Minister, Dr Hilgard Muller, told a press conference in Lisbon late in 1964 that South Africa and Portugal did not contemplate a joint defence agreement at present. The question was raised in respect of the reported incursions into Mozambique from Tanganyika of insurgent bands of a liberation army. Doubtless, if the war in Angola threatened to spill over into South West, the matter would be looked at again. But, at the moment, as J. E. Spence suggests in his book Republic Under Pressure (Chatham House Essay, 1965), the South African Government has no wish to be involved in extra-territorial commitments of this kind, 'if only because to do so would be to make nonsense of reiterated claims that apartheid has no international significance and does not therefore constitute a threat to international peace and security. Thus the assumption of a natural harmony of interests between the three surviving white governments in Southern Africa does not hold good in South Africa's case, however much the other two would welcome it.' (c) Bechuanaland A long and virtually impassable frontier exists between South West and Bechuanaland. In the North the Okavango Swamp stretches northwards out of Bechuanaland and effectively cuts off the Caprivi Strip from South West proper. In the south the Kalahari Desert acts as a similar natural barrier. The Windhoek Advertiser, 5 July 1961, commented: 'A large section of the South West African border with Bechuanaland has been policed, apparently to prevent a mass 258

THE DEFENCE POSITION exodus of Non-Whites to the British Protectorate now that the U.N. Standing Committee on South West Africa is visiting this territory. At least one hundred policemen have come from South Africa and further men were drawn from police stations in the Territory. In the north the road from Karakuwisa in South West Africa to Maun in Bechuanaland has been closed by a police roadblock.' 5. SANCTIONS AGAINST SOUTH AFRICA If the international community wishes to reassert its control over South West Africa, what can it do? Theoretically there are two courses open to it. 1. It could launch a military operation which would seek to wrest South West from South African control. This idea was once mentioned by Anthony Wedgwood Benn, now a Labour Minister, in the Guardian, 17 April 1964: 'The judgement (of the Court) should be enforced by an ultimatum to Pretoria backed by the threat of a total economic blockade. We must all hope that this ultimatum will be effective without the use of military force. If it is not, a U.N. combined operation may have to be mounted for a landing in Walvis Bay and a march on Windhoek.' It is worth adding that any military operation mounted by the United Nations in South West would be extremely hazardous if Angola was still in the hands of the Portuguese. 2. It could impose economic sanctions against the Mandatory Power, South Africa, with a view to coercing her into abandoning the Mandated Territory. There are a number of objections to economic sanctions - cost and doubt about their outcome - but sanctions against South Africa designed to make her abandon South West would not need to be nearly so drastic as those, formerly envisaged, which were designed to make her abandon her policies of apartheid - in effect to bring about the downfall of the existing regime. The literature on sanctions is very sparse, but it is not the object of this paper to raise again in detail the question of sanctions against South Africa. This has already been very satisfactorily done in the 259

INSIDE SOUTH WEST AFRICA paper presented to the International Conference on Economic Sanctions against South Africa, by William Gutteridge, entitled 'The Strategic Implications of Sanctions against South Africa'. It is worth here briefly recalling some of the objections to sanctions which have already been raised. The Report of the International Conference on Sanctions against South Africa in 1964 made the following observation: 'The Conference also considered the immediate strategic problems arising out of its terms of reference. Expert advice given to the commission indicates that a programme of economic sanctions cannot be effectively applied without a naval blockade to enforce them. Without a reasonable chance of assembling the resources required for complete success, an attempt to impose such a blockade would be worse than futile. The expert testimony examined by the commission was helpful in illuminating the practical difficulties of a blockade in two ways. In the first place it indicated broadly the forces and the financial resources necessary for the effective patrol of a coastline as extensive as South Africa's. It also set out the disposition of various types of naval and supporting forces among the members of the United Nations. 'Since the coast line of South Africa and South West Africa together covers about 2,500 miles, an effective blockade would require a fairly substantial naval and air force and a control system organized around fleet carriers. A naval patrol would require from four to seven fleet carriers and from 30 to 100 vessels. On the basis of the American experience during the blockade of Cuba in 1962, it was estimated that a blockade of such dimensions might cost from $150 mn. a month. It is clear, therefore, that a naval blockade of South Africa could be successful only with financial backing far heavier than any previously given by the United Nations and with the full support of the major naval powers. This conference believes that, given sufficient political will, the nations of the world would be in a position to conduct an effective enforcement action.' A more pessimistic approach to the cost of economic sanction is given in an article, 'What price sanctions against South Africa', by Alan Gray in the African Institute Bulletin for November 1965: 260

THE DEFENCE POSITION 'According to official British and American estimates the cost of a naval blockade of South Africa's 9 principal ports would be between £70 million and £130 million a year plus 'several hundred millions more' for air control measures. For how long would expenditure on this scale last? Nobody has said, because nobody really knows. But blockading costs, even if they had to be born only for a couple of years, would clearly add a formidable figure to the price that would have to be met if sanctions were to be applied. And in the present state of United Nations finances, it is impossible to see how the bill for such an undertaking could be met. The great sea and air panoply required in such an operation could only be provided from British and American sources.' One of the leading authorities on military affairs in Africa, William Gutteridge, commented in the Guardian, 30 June 1964, on the possible degeneration of economic sanctions into military activity. 'It is important to appreciate that in South Africa it (a blockade) would not only be a major operation in itself but be likely to lead to actual war. '... The effect of such forces on the Afrikaner "laager" mentality is difficult to assess, but it is not hard to foresee an awkward incident or even a desperate attack by jet aircraft of the S.A.A.F., and then strong counter-measures.' Since economic sanctions against South Africa were first seriously considered in 1963, South Africa has not been idle. An oil embargo has always been regarded as the most effective weapon. Consequently the South African Government has been taking counter measures. Professor Colin Rhys Lovell comments in Current History for April 1965: 'Verwoerd admitted in May, 1963, that a petroleum embargo would cause serious problems. Anticipating the worst, the Government launched a crash programme for oil prospecting in South Africa. Dr Francis Herson, formerly of Iraq Petroleum, was hired to direct the programme, which involved granting oil prospecting leases on very generous terms. Early in 1965, 261

INSIDE SOUTH WEST AFRICA the Government appropriated $21 inn. for petroleum research, $14 inn. of this going to a single company of a public corporation type.' Many of the oil-prospecting concessions are in South West. This would create additional unwillingness on the part of South Africa to abandon South West, since South Africa's Government is relying on home-produced oil to beat a possible embargo. But, more important than the reaction of South Africa itself, is the attitude of those countries which would be likely to bear the cost of sanctions - in particular Britain and the United States. Britain, for the reasons given in the following article by Douglas Brown of the Sunday Telegraph, 29 April 1962, is more important in this context than the United States: 'Strategically it (South Africa) forms the essential bastion south of the Equator, taking the place of Suez and providing the only secure base in the South Atlantic and . Politically, on the other hand, it is a hideous liability, because its racial policy is abhorrent to the rest of the world and a deep affront to all the "uncommitted" nations. '. .. It is impossible for this country to entertain the idea of a military vacuum in Southern Africa. Ties of blood, our imperial and naval tradition, our rights in the naval base of Simonstown, our surviving responsibility for the security of territories as widely separated as and Basutoland - all make us the natural overseers, on behalf of the Western Alliance, of the sea route round the Cape.' Recently, however, new Anglo-American decisions have been taken about the future of Western dispositions in the Indian Ocean, which could have a significant effect on the Western attitude towards South Africa. The London correspondent of the Rand Daily Mail discussed the new situation in the following terms (25 November 1965): 'Behind the Anglo-American decision to set up a naval communications and observation centre at Diego Garcia, one of the Group, lies a top-level strategic reappraisal of Indian 262

THE DEFENCE POSITION Ocean defence in which South Africa is expected to participate. Fixed land bases, such as Aden and Singapore, are regarded as obsolete. 'Diego Garcia, as the nerve centre of the Indian Ocean, linked to observation posts and communications installations in South Africa, East Africa, the , Malaya, Western Australia and the Antarctic will become a key point for the defence of the West. 'It is a flat coral island surrounded by deep water suitable for concealing Polaris-type submarines. Ultimately fairly extensive installations for servicing aircraft and staging the rapid transport of armed forces from one part of the Indian Ocean to another will be erected. 'First priority will be given to the erection of radar and radio equipment of a most advanced type costing millions of Rands. The Diego Garcia centre will be linked with communication and observation posts in the Pacific defensive zone maintained by the United States. 'The basic principle of the new strategic conception now accepted for the Indian Ocean is mobility. This means operating with smaller, faster, more scientifically equipped and better trained forces that can be virtually self-contained. Submarines and carrier-based aircraft will be the main weapons against atomic attack. 'It is understood in London naval circles that the naval communications installations maintained in South Africa will form one of the outer posts of the system to be built round Diego Garcia. It is felt that the value of the Simonstown Agreement to both Britain and South Africa, if anything, will be enhanced rather than reduced.' This may have been wishful thinking on the part of the South Africans. The tendency among British military commentators lately has been to discount the importance of the Simonstown base. Christopher Johnson, the diplomatic correspondent of the Financial Times, wrote of this as follows (17 November 1964):

INSIDE SOUTH WEST AFRICA 'The main use of the Cape sea route to Britain would be in the event of a full-scale local war with Indonesia, in which the Suez Canal was closed to U.K. naval forces for political reasons. It would hardly be relevant in a nuclear world war. But Simonstown is a forward operating base for refuelling, communications and storage, rather than a main base like Singapore. It could be replaced by bases on islands such as St. Helena and the , and by supply ships. 'Without the Simonstown Agreement, South Africa's naval defence system would be gravely weakened, as close co-operation between the British and the South African navies has been part of the Agreement. Nor could South Africa continue to claim that her navy was helping to defend Western interests if she abrogated the main instrument under which that help has been given. Britain is unlikely to take the initiative in ending the Agreement because Simonstown is still quite useful. But Mr. Wilson will hardly be influenced by Dr Verwoerd's threat to end it, because the base is not a vital British interest.' Nevertheless, it must be emphasized that no British government is likely to be in favour of complete economic sanctions against South Africa for the purpose of destroying the regime. It is not necessary to be unduly cynical to reflect on the fact that South Africa is Britain's fourth largest export market, amounting to over £212 million in 1964 (in Britain's favour by nearly £100 million), and that there is £1,000 million of British capital invested in South Africa. The more respectable argument in favour of doing nothing was given by Lord Caradon at the United Nations on 1 December 1965: 'We must accept the fact that a full campaign of economic sanctions backed by a blockade would require resources beyond the present capacity of the United Nations.' This was said in terms of sanctions against South Africa herself, designed to crush the Verwoerd Government. Sanctions designed not to topple Dr Verwoerd, or even to change his racial policies, but to make his government abandon South West, might win international support. But there are likely to be pressures in England building up in favour of action against South Africa, especially if South African 264

THE DEFENCE POSITION support of Rhodesia continues. The Guardian, 22 February 1966 said that: 'Britain must warn South Africa of the great danger that would arise if the United Nations ordered sanctions against South Africa as well as Rhodesia.' The example of sanctions against the Smith regime could pave the way to a possible scheme of graduated sanctions against South Africa herself, which would have the limited object of forcing Dr Verwoerd's government to abandon South West. Even the threat of such sanctions might be sufficient to persuade the South African Government that it was not worth holding on to South West. Limited economic sanctions, coupled with a wellpublicized invasion plan of South West by the United Nations, might be effective. If this type of approach succeeds with Rhodesia, there would be additional weighty arguments in favour of trying it with South Africa. But since this would essentially be psychological warfare, it is impossible to tell how long Verwoerd's Government would take to abandon South West. If the South African Government chose to take action against the blockading fleet, this too would lead to unforeseeable consequences. 265

4. The Abuse of Responsibility From Mandates to Trusts by Eduardo C. Mondlane, President, Mozambique Liberation Front (Frelimo). The last forty years have seen a tremendous change in man's idea of national self- determination and independence. For many centuries before the First World War, it was an accepted idea that once a nation had been defeated by another, its future was to depend on the whims of its conqueror until such a time as it might prepare itself for a revolt. After the First and Second World Wars, however, the world has witnessed two developments which have radically altered man's conception of the rights of the conquered nations - the establishment of the Mandates and Trusteeship systems of the League of Nations and United Nations respectively. It is not within the scope of this paper to enter into a discussion of the philosophical and social changes which preceded the establishment of the two systems of colonial policy and administration, even though such an analysis might seem necessary in order to cast some light on the background. In the literature relating to the sources of the Trusteeship system, many writers have given credit to various social-religious-political forces as having provided the necessary background for its establishment. Anglo-Saxon writers, 267

THE ABUSE OF RESPONSIBILITY for example, tend to trace the idea of Trusteeship from the traditional British spirit of the Magna Carta, without explaining how it happened that the same spirit did not prevent the subjugation of so many millions of people all over the world by the same British. The same might apply to the proclivity of writers of Spanish background, who tend to trace the idea of Trusteeship to what they call a traditional Catholic concept of man: a being with inalienable natural rights endowed by God. They find in Father Las Casas, for example, and his anti- colonialist activities in , the personification of the concern of the Church for the rights of a conquered people, which when translated into political institutions may appear in the form of a Mandate or Trusteeship system. We believe that neither philosophy nor religion had anything to do with the establishment of the two systems of colonial control which we are about to discuss; rather, the balance of forces which prevailed at the end of the two world wars forced those responsible for working out the terms of the peace to invent a system for the disposal of the spoils of the common enemy. In this paper we are primarily interested in discussing, in general terms, how the Trusteeship system developed and functioned and its effect upon the colonial world. But before entering into the discussion of Trusteeship, we need to give an outline of the Mandates system which preceded it by a few years. THE MANDATES SYSTEM OF THE LEAGUE OF NATIONS Like the Trusteeship system, the Mandates system was created for the purpose of solving a specific question, namely, that of keeping the peace in Europe immediately after World War One. Even the 'League itself was never conceived to be anything but an instrument for insuring immediate peace between nations. In this connexion, it might be interesting to quote what Clemenceau, the representative of France at the Big Five meeting in Paris in 1919, said: 'The League of Nations,' thus goes the summary, 'was to ensure the peace of the world . . . and not a League of Nations with governmental functions to interfere in the internal affairs of member states, with trustees in various places sending reports to he did not know whom.'1 In other words, when the Mandates system was first conceived and established, the main question was to whom and how should the territories formerly belonging to Germany and Turkey be disposed.

FROM MANDATES TO TRUSTS At that time three possible alternatives were available: 'restoration, independence or annexation' None of these solutions was then considered satisfactory. Restoration was opposed outright by everybody; a number of the associated powers had territorial claims on some of the areas involved, which had been secretly signed during the course of the war. Consequently, it would have been impossible to restore the authority of Germany and Turkey over those territories. On the other hand, outright independence was not favoured at the Paris Conference, although the principle of self-determination had already been current both amongst the inhabitants of the territories and some of the leaders of the Big Five States. The majority of the allied states had strong objections to outright independence for any of the territories, for they wished to exercise some degree of control over them for economic and security reasons. Annexation, therefore, was the most favoured course of action left open to the Paris Conference. It might even be said that at the Paris Conference the only issue was a battle between those who favoured outright annexation of the former enemy territories and those who opposed it. What seems to have saved the situation was the fact that the very terms of the Conference had specifically included a committment by the allied powers to the principle of 'no annexation' as a pre- condition to participation in the Conference. Later on, it will be seen that when finally the Mandates system was outlined in detail, each power which had favoured annexation was satisfied with having secured enough of the substance of annexation within the mechanism of the Mandates to make further opposition to it unnecessary. This was also achieved in part by the introduction of class 'C' Mandates in the system, in addition to the 'A' and 'B' types originally suggested by President Woodrow Wilson of the United States. Thus the Mandates system as it was finally established represents a compromise between those who stood for outright annexation and those who were opposed to it. It must be mentioned in this connection that the views of the inhabitants of the territories concerned were never consulted, even though France and Britain had agreed in principle that a commission would be sent to the Middle East territories to assess their opinions concerning their future3 It might be interesting to note that among the leading states in 269

THE ABUSE OF RESPONSIBILITY favour of outright annexation of former German and Turkish colonies were South Africa, Australia and New Zealand. Article 22 of the League of Nations sets out the Mandates System, the terms of which can be summarized in the following manner: (1) application of the idea of trust (2) classification of the territories to be mandated into 'A', 'B' and 'C' types; and (3) provision for the international supervision of the Mandates. Article 22 states, among other things, that the 'well-being and development' of the peoples in former enemy territories form a 'sacred trust of civilization'; that 'securities for the performance of this trust should be embodied in the Covenant; and that the best way of giving effect to these ideas was to entrust the tutelage of these people to advanced nations acting as 'Mandatories on behalf of the League'. Thus it was set forth in unequivocal language that while the mandated territories were to be administered directly by the so-called 'advanced' nations, this would only be done on behalf of the League of Nations, and that these administering authorities would be responsible to the League for the mandates. CLASSIFICATION OF THE MANDATED TERRITORIES As was indicated above, the original suggestion for the establishment of the mandates system had included only two types of territories: 'A' and 'B', the first type comprising all former Turkish colonies in the Middle East, while the second type included all the former colonial possessions of Germany in Africa and the Pacific Islands. However, in view of the strong claims which several of the associated states had over a number of the territories, it was necessary to establish a third type of mandate as a compromise. This was the type 'C' which was proposed by General Smuts of South Africa. The Mandates System, as it was finally agreed upon, classified the territories into three types, rationalized on the basis of their 'stage of development'. Type 'A' comprised former Turkish colonies whose 'existence as independent nations' would be provisionally recognized, with the mandatory state rendering only temporary 'administrative advice and assistance'. 270

FROM MANDATES TO TRUSTS Type 'B' involved former German colonies in Africa, except South West Africa, wherein the administering state was to be responsible for the territory under the following conditions: (1) provision for the freedom of conscience and religion; (2) prohibition of the slave trade, and of the arms and liquor traffic; (3) prevention of the establishment of fortifications or military and naval bases, and of military training of the natives for 'other than police purposes and the defence of the territory'; and (4) security of the 'open door' policy in the territories for all members of the League. Type 'C' included all former German colonies in the Pacific and South West Africa, which could 'best be administered under the laws of the Mandatory as integral portions of its territory', subject to the above-mentioned safeguards. Furthermore, each mandatory state undertook the obligation of rendering to the Supreme Council of the League an annual report on the conditions in any territory committed to its charge. Finally, a Permanent Mandates Commission was established to 'examine the annual reports of the Mandatories and to advise the Council on matters relating to the observance of the mandates.' We shall now proceed to point out some of the inherent weaknesses of the system as it is outlined in Article 22 of the League, and how these were improved upon by the Trusteeship system some three decades later. At a glance, five major weaknesses of the Mandates System cried out for correction: (1) The first of these related to the question of the final responsibility in the system. As was indicated above, final responsibility reverted to the Supreme Council, which was composed of practically the same states as the Mandatories. Instead, final responsibility should have reverted to the League of Nations as a whole through its Assembly. (2) No definite aim was indicated as to the final goal of the

THE ABUSE OF RESPONSIBILITY Mandates System, except for the 'A' type. However, viewed from the attitude of the majority of the powers that finally became mandatories, it is easy to see how this lack of goal might have been intended to facilitate a later annexation of the territories. (3) Even for the 'A' mandates, there was no definite time-table established for the eventual independence of any of the territories. Nevertheless, all type 'A' territories finally achieved their independence more or less peacefully, except Palestine. (4) There was no attempt to ascertain the wishes of the inhabitants of these territories before assigning them their mandatories, even though it had been agreed that the 'A' type mandates would be consulted. (5) Finally, no provision was made to enable the inhabitants of the mandated territories to petition the League concerning the manner in which the mandatories were carrying out their obligations, even though in the course of the development of the system, some form of limited petitioning was finally allowed within the mandates system, especially in the type 'A' group. FUNCTIONING OF THE MANDATES SYSTEM In the League of Nations, the organ which was charged with the responsibility of carrying out the day-to-day business of the mandated territories was the Permanent Mandates Commission. This body was composed of nine members, all chosen on the basis of their being 'experts' on matters affecting the lives of the inhabitants of the territories. The contribution of the Commissioners in any session of the Permanent Mandates Commission was unofficial; that is, what comments or suggestions were made by any of the members of the Commission were considered 'personal' and did not in any way commit the government from which they came. The Permanent Mandates Commission reported its annual deliberations to the Supreme Council of the League of Nations and not to the Assembly of the League itself, although an indirect provision was made to enable the Assembly to deal with matters affecting 272

FROM MANDATES TO TRUSTS mandates. This provision was contained in Article 3 of the Covenant, which stated in part that the Assembly 'could deal with any matter within the sphere of action of the League'. This provision enabled the Assembly to consider questions concerning mandates whenever these arose in the course of time. However, this is not the same as having direct responsibility over the mandates, a responsibility which, as we will later discover in connection with the Trusteeship System of the Charter of the United Nations, was accorded to the United Nations General Assembly. In the last resort and under the circumstances, the best thing the Assembly of the League could achieve was to function as 'a keeper of the Supreme Council's conscience' on matters affecting mandates. In trying to establish the way by which the Supreme Council interpreted its functions regarding the mandates, we found that there were two possible alternatives: (1) by ascertaining whether the mandatory states had made good use of the powers accorded them; and (2) by ascertaining whether its administration had conformed to the best interests of the native population. The Council chose the latter view as indicated in one of its reports presented to the Assembly in December 1920. Thus, 'with regard to the responsibility of the League for securing the observance of the terms of the mandates, the Council interprets its duties in this connection in the widest manner.' On the basis of this conclusion, the Permanent Mandates Commission instituted a number of devices with which to obtain information about and conduct investigations concerning the administration of the mandates. The chief source of information was the annual report submitted to the Council through the Commission by each of the mandatory powers. In order to facilitate the preparation of the reports, the Commission drew up three sets of questionnaires, corresponding to each of the three types of mandates. These questionnaires were comprehensive and were designed to cover the whole range of administration of the mandates, including texts of all legislative or administrative decisions adopted in the mandated territories. Also, the reception and examination of the official reports was often accompanied by the practice of hearing an accredited representative of the 273

THE ABUSE OF RESPONSIBILITY mandatory at the same time that each report was considered. This practice was intended to obtain elucidation on any points which might not have been clear in the report, or to ask questions of a general nature not covered in the report, thus giving the mandatory power an opportunity to explain anything it deemed necessary. As mentioned before, Article 22 of the League did not provide for the inhabitants of mandated areas to petition the Commission. This anomaly was later somewhat corrected by introducing a series of rules governing the procedure for handling petitions. Under these rules, petitions could be presented by the indigenous inhabitants or from any other source. The rules governing the presentation of the petitions were indicative of the typically colonial spirit which prevailed at the time. For example,one of the principal rules stipulated that all petitions from indigenous inhabitants had to be sent to the Secretariat of the League only through the mandatory authority concerned, which in turn could make the comments it deemed proper before sending the petition to the League. If, on the other hand, a petition originated from some other source than the indigenous inhabitants of a mandated territory, it was to be sent directly to the Permanent Mandates Commission for a decision as to whether or not it was worthy of consideration. Only after the petition had been examined by the Commission could it be sent to the mandatory for comment. It must be remembered that this right of petition was usually accorded to the 'A' type territories, and only very rarely did any type 'B' or 'C' petitions come under consideration. In this connection, it is important to note that all oral petitions were heard 'only on an unofficial basis', because the Council had refused to approve a proposal to institute a system of oral hearings even for the 'A' type mandated areas. The main objections put forth against oral hearings were that: (1) Such a procedure would have transformed the Commission into a court of law, hearing controversies, which would be inconsistent with the mandates system; (2) It would weaken the authority of the mandatory power in the territory concerned; and (3) There was no such a right of hearing in territories where the right of petition was recognized. 274

FROM MANDATES TO TRUSTS Summing up, one might say that the most important supervisory device of the Permanent Mandates Commission, and the only one provided for in the Covenant, was the annual report of the mandatory powers, supplemented later by the practice of oral hearings and questionings of the special representatives. As we have seen above, neither petitions nor visiting missions were used to any significant extent; so much so that even though the League had claimed that it would interpret its powers broadly, direct contact between the dependent peoples in the mandated areas and the Permanent Mandates Commission was almost nil. This fact in turn placed serious limitations on the League's capacity to oversee effectively the administration of the mandated territories. In spite of all these apparent weaknesses in the mandates system, however, it must be pointed out that in comparison with any previous attempt at international supervision of colonial territories, and especially as compared to the classical practice of unilateral domination of dependent peoples by colonial powers, the Mandates System of the League of Nations definitely marked a significant step forward in the desired direction. Furthermore, the Mandates System demonstrated the possibilities for an international organization not only to supervise the administration of dependent territories, but also to provide an orderly process by which these areas could peacefully attain the status of independent states in the family of nations. THE TRUSTEESHIP SYSTEM OF THE UNITED NATIONS The Mandates System of the League of Nations, briefly outlined above, should provide the necessary background for understanding the Trusteeship System of the United Nations, which was established immediately after the Second World War. In fact, the Mandates System, as the immediate predecessor of the Trusteeship System, provided a framework upon which to shape the latter. It is fair to say that whatever improvements may have been achieved in the Trusteeship System over the Mandates System were the logical result of the experience gained during the period that the Mandate System was in force. Before we enter into a detailed analysis of the difference between the two systems, let us review some of the historical elements in its beginnings. The Trusteeship System of the United Nations, as it was finally 275

THE ABUSE OF RESPONSIBILITY agreed on in San Francisco and as it appears in the Charter of the United Nations Organization, was set out in the provisions contained in Chapters XII and XIII of the Charter. Chapter XII outlines the general system of trusteeship and Chapter XIII provides for the establishment of the Trusteeship Council. Chapter XI of the Charter sets out a declaration regarding the status of non-self-governing territories, which marks one of the most revolutionary improvements over the attitude of the League of Nations concerning colonies in general since it referred to all dependent territories both within and outside the Trusteeship System. Let us turn to a comparison of the two systems, namely, the provisions of Article 22 of the Covenant of the League of Nations and those of Chapters XII and XIII of the Charter of the United Nations Organization. - The most striking differences between Article 22 of the Covenant and Chapters XII and XIII of the Charter relate to the scope and objectives of the two systems, and to the devices for international supervision in each. Let us proceed to enumerate these differences as we think of them, without in any way implying any order of importance. (1) The Mandates System, as part of the treaties of peace ending the First World War, was confined to ex-enemy territories, while the Trusteeship System was designed to embrace, at least potentially, all colonial territories, including the former mandates. (2) The Covenant classification in 'A', 'B' and 'C' types was disallowed in the Charter. Instead, each trusteeship agreement was drawn up by the states directly concerned and approved by the General Assembly or Security Council, depending on whether the area was considered non-strategic or strategic, respectively. That is to say, the Charter made a more flexible arrangement than the League, since each agreement could vary according to the territory concerned, without the rigid effect of the prior classification. (3) For the territories brought under the trusteeship system, self-government or independence is specifically indicated as an objective; while under the Covenant, only territories in the 'A' category had been recognized as qualifying for final 276

FROM MANDATES TO TRUSTS independence, although the possibility that other territories might become independent was not ruled out. (4) Under Chapter XIII of the Charter, the devices for international supervision include, aside from reports from the administering authorities as had been required by the League, the acceptance of petitions by the Trusteeship Council and provision for periodic visits to the Trust Territories at times agreed upon by the administering authorities. Both these devices were considered by the Permanent Mandates Commission, but they were never given any real application, at least as a regular method of supervision. Generally speaking, Chapters XII and XIII of the Charter are much more specific in laying down the lines of international control of dependent territories than were the provisions of the Covenant. One of the most specific examples of this is the composition or status of the Permanent Mandates Commission itself within the League of Nations, as compared to that of the Trusteeship Council within the United Nations Organization. In Article 22 of the Covenant, nothing is indicated about the composition and status of the Permanent Mandates Commission, except the mere mention of the fact that 'it shall be constituted', and that it is to receive and examine the reports of the mandatories and advise the Council. The Trustee-ship Council, on the other hand, was given a separate chapter in the Charter of the United Nations, and rather detailed provisions are made covering its composition, functions and its procedure. The members of the Commission were drawn from a list of the so-called 'private experts' under the League, while in the United Nations members of the Trusteeship Council are government representatives, and it is one of the principal organs of the United Nations, although it must report directly to the General Assembly and the Security Council. Furthermore, the Trusteeship Council has much larger powers of supervision over the work of the administering authorities than the Commission ever hoped to have. This change in the type of people participating in the deliberations of the bodies, from a group of experts into government representatives, meant a radical change in power as well. If one were to assume that those who were supposed to be 'experts' actually were experts, then the loss in the knowledge which they possessed was a

THE ABUSE OF RESPONSIBILITY gain in action, since the government representatives have power to implement many of their decisions. Therefore, the Commission could only express an opinion and give advice, while the Trusteeship Council can act. In sum, it must be said that comparing the two systems of supervising the administration of colonial territories, the Trusteeship System of the United Nations represents a definite advance over the Mandates System. The Trusteeship System contains the following provisions: (1) definition of the boundaries of each territory placed under the system; (2) designation of the administering authority of the trust territory; (3) the obligations of the administering authority under Article 76 of the Charter (which sets forth the basic objectives of the trusteeship system); (4) the rights of the administering authority in legislation, administration and jurisdiction, in constituting the territory into customs, fiscal or administrative union with adjacent territories under the control of the administering authority, in establishing naval, military and air bases; (5) promotion of educational, cultural and political development of the inhabitants of the territory; (6) promotion of the economic rights of the inhabitants, and the assurance of freedom of religion and speech. The provisions also include: (7) the terms under which the annual reports to the General Assembly of the United Nations by the administering authority must be formulated by the Trusteeship Council, as well as the preparation of the annual questionnaires which the Council must submit to the administering authority; and (8) approval of the Agreement and of any alteration or amendment thereof by the General Assembly. In connection with Item (4), the difference between a strategic 278

FROM MANDATES TO TRUSTS and a non-strategic territory (i.e., if an administering authority may establish military, naval or air bases) resides in that in a strategic territory affairs are subject to the ultimate consideration of the Security Council rather than that of the General Assembly, and that some of the areas are closed to the Trusteeship Council's visiting missions, that is, to international inspection. Annual Reports. In considering the improvements which were made in the establishment of the Trusteeship System as compared to the Mandates System, it is necessary to examine the role played by the annual reports. The annual reports are at the core of the information on the basis of which conditions in the territories can be reviewed. The annual reports derive their information from various sources. The most important of these are: (1) visiting missions; (2) the reports submitted by the administering authority; and (3) petitions, oral and written, presented by the inhabitants of the territories under trusteeship. The reports of the visiting missions and the petitions, raising questions of a general nature about the territory, are considered along with other sources of information. As in the Mandates System, a special representative of the administering authority is always invited to participate in the meetings, to help clarify certain matters not adequately dealt with in the reports. The annual reports of the Trusteeship Council represent the most important element of international supervision. Supervision per se, no matter how well- meant, cannot be fruitful if conditions in the territories are not fully known, let alone understood. Petitions. The practice of requiring that petitions be presented or heard in the Trusteeship Council and later in the Trusteeship Committee of the General Assembly itself marks another sharp difference between the two systems of international supervision. There are three main differences between the rules which govern the presentation of petitions as between the Mandates and Trusteeship. First, Trusteeship petitions can be submitted through the Secretariat, or addressed directly to the Council or the Trusteeship Committee of the General Assembly, and considered without having to be sent through the administering authority as was

THE ABUSE OF RESPONSIBILITY required in the Mandates System. Secondly, the presentation of oral petitions is considered normal practice in Trusteeship, while it was not even allowed under the Mandates System. Thirdly, generally speaking, petitions are provided for as a normal procedure in Trusteeship, while under the Mandates, they were considered as exceptional practice and were submitted only by the inhabitants of the type 'A' mandates. Visiting Missions. Another sign of improvement in the Trusteeship System as compared to the Mandates is the practice of sending visiting missions to all trust territories. In the League of Nations only the Supreme Council did once or twice send investigating commissions to mandated territories. The Permanent Mandates Commission itself did not send visiting missions, even though nothing in the Covenant or the Constitution of the Commission specifically prevented their doing so. It was rather the weight of opinion at the time which was against the sending of any investigating missions, as can be seen in Lord Lugard's remarks, expressed during one of the sessions of the Commission: 'It was impossible for the Commission to adopt the policy of challenging the whole administration of any mandatory power by visiting the territory in order to listen to all who criticized it. Such a course would be a signal for trouble.'5 Composition of Visiting Missions. The visiting missions of the Trusteeship System are composed of four Council members, nationals of two administering and two non-administering states. The Council decides, on the basis of seniority and rotation, which state's nationals should make up the mission's membership, and after the candidates have been approved by the Council, they are collectively responsible to it. In this connection, it should be pointed out that the Council has consistently refused as a matter of practice to appoint a national of the state whose territory is to be visited by a mission. Also, the Council has always rejected any suggestion to weight the mission's membership in favour of non-administering states' nationals, or to allow members of specialized agencies to serve on the missions. One of the most important values of the visiting missions is that they give the members of the Council an opportunity to see for themselves and on the spot what is the actual situation prevailing in the territory. They are then able to strike a balance between what the administering authority tends to present in its annual report and the position of the petitioners. 280

FROM MANDATES TO TRUSTS THE PURPOSE OF TRUSTEESHIP: SELF-GOVERNMENT OR INDEPENDENCE The attainment of self-government or independence has been stated as the goal of the Trusteeship System. In the course of the last two decades, since the establishment of the system, both the Trusteeship Council and the General Assembly of the United Nations have frequently referred to this purpose of trusteeship, calling for special reports on how this goal was achieved in each territory. Therefore, all social, economic, educational and technical questions in respect of any trust territory are treated by the Trusteeship Council in relationship to the main purpose; the degree to which they may help in the advancement of the people inhabiting that territory towards the achievement of self-government or independence. In this connection, it might be interesting to review some of the factors which made for the establishment of precisely this formulation of the goal of the Trusteeship System, namely, self-government and independence. In other words, why did the Charter specify the goal in this manner? As may be recalled, in the Mandates System reference was made to independence only in connection with the type 'A' group, and not for the 'B' and 'C' types. Why?, it might be asked. Among the members of the Permanent Mandates Commission, the issue of independence was sometimes discussed, and during these discussions, the tendency was to ignore the possibility of any type 'B' and 'C' mandates ever achieving self-government or independence. During one of the debates on the future of mandated territories, Lord Lugard of Britain is quoted as having said: 'The time when the bulk of the populations of Tropical Africa will be able to stand alone in the strenuous conditions of the modern world may not yet be visible on the horizon, but the mandates impose upon the powers which have accepted them the obligation to conduct the people toward that goal.' Arguing against this point of view; however, Freire d'Andrade of Portugal asserted: 'The ideal is the slow, unforced assimilation of weak or inferior communities by strong or more highly developed communities.'6 In view of the above attitudes, therefore, it can be safely concluded that, at least for the peoples of Africa south of the Sahara and those of the Pacific Islands, self- government or independence was never considered as a goal. As may be recalled, the establishment of the

THE ABUSE OF RESPONSIBILITY types 'B' and 'C' in the Mandates System was prompted by a desire of most of the associated powers to annex as many of the colonies of Germany as possible. This would have precluded any consideration of developing any of these territories toward self-government or independence. At the end of the Second World War, the policies of the different colonial powers tended to favour either complete integration of their overseas possessions, or to allow some internal self-government within an imperial system. The former system was represented by the French and Portuguese, while the latter had as prototypes the relations existing between the United States and Puerto Rico, or Great Britain and India before the latter achieved independence. However, the attitude of the peoples of Africa and Asia soon after the Second World War was radically opposed to this point of view. Consequently, their attitude, together with the position of the socialist states, such as the Soviet Union, forced the Western Powers to rethink their position during the negotiations which preceded the establishment of the United Nations. When the Trusteeship System was finally included in the Charter, a definite aim had to be indicated. As may be recalled, when the San Francisco Conference was convened in 1946, the world had just passed through one of the worst wars in man's memory. During the five years of the war, many millions of colonial peoples had been stirred into a new attitude toward the imperialist powers. Their aspirations to freedom through some form of self-determination could not easily be suppressed by those who were responsible for drafting the Charter of the body. On examining some of the documents containing reports of the discussions which took place at San Francisco, one notes a rather sharp division between the point of view of the traditionally imperialist powers and that of the more progressive states. In drafting the provisions of the Charter of the United Nations regarding the political goals of trusteeship, three stages of development can be noted. The original draft proposals of the United States, which were adopted by the Soviet Union without alterations, called for the eventual independence of not only those territories which had been under the control of enemy powers, but also of all non-selfgoverning areas. Later on, however, the United States altered its position, which had been bitterly opposed by her Western Allies, and adopted the less definite concept of self- government as the only goal of trusteeship. 282

FROM MANDATES TO TRUSTS The position of the Soviet Union and several newly independent states continued steadfastly in favour of eventual independence as the only aim of trusteeship. As in all international agreements, it was necessary to come to some kind of middle position which could be acceptable to most of the states. So, a compromise formulation was arranged which stipulated that self-government or independence shall be the goal of the new system of international supervision for those territories which are under Trusteeship. This meant that either self-government or independence could be considered sufficient for the termination of the supervision, and that the nature of self- government or independence would depend on the particular circumstances of the trust territory. It was also stipulated that the political development of the inhabitants of a trust territory would be in accordance with the wishes of the people of the territory. Unfortunately, this kind of formulation of the goal of trusteeship, while it gave hope to millions of people under colonial control, also provided a wide loophole for some of the imperialist powers, who immediately began to contrive some legal arrangement to incorporate some of the territories into their metropolitan systems. This was made possible because as long as the people of a given trust territory consented, they argued, political advancement could take the goal of self- government within a larger political entity such as the British Commonwealth, the French Union or the American Federal Union. In fact, this is what happened to Puerto Rico, a nonsef-governing territory under the control of the United States of America. In 1956, the French tried the same trick in Togoland, and for a while they claimed that their referendum, carried out unilaterally in 1956, had been approved by the Togolese people, favouring union with France. But, since the United Nations had not participated in the supervision of the referendum, it was challenged later by Mr Sylvanus Olympio and his party, which a year later won in a United Nations-supervised election, thus reversing the position imposed by the French Government. Under the same provision of the Charter, a trust territory could choose to completely fuse with another, once the choice was made through a process involving a direct consultation of the opinion of the adult population under the supervision of the United Nations. This is what happened to Togoland under British Administration, which chose to unite with the (now Ghana), the

THE ABUSE OF RESPONSIBILITY Cameroons under British Administration, which split into two parts, one joining Nigeria and the other federating with the Cameroun Republic, and Dutch West Guinea, also known as West Irian, which chose to join Indonesia. However, it is fair to indicate here that independence, as one of the goals of the Trusteeship System, was achieved by a number of trust territories. These include Tanganyika under British Administration, which became independent in 1961; Cameroun, under French Administration, in 1960; and Ruanda-Urundi, under Belgian Administration, which, after splitting into two States, became independent in 1961 as Ruanda and . THE EFFECT OF TRUSTEESHIP ON NON-SELF-GOVERNING TERRITORIES In spite of the fact that the Charter of the United Nations does not give as much power to the Committee on Non-Self-Governing Territories as it does to the Trusteeship Council to supervise the administration of the peoples under colonial control, there seems to be no doubt that during the last 15 years, the Trusteeship System has had a profound influence in the social, economic and political development of the colonial peoples. This influence has taken various forms at different times. Viewing the situation from the point of view of the organizational structures, one can easily note the changes which have occurred in the operation of the organs which function as supervisory bodies, such as the Committee on Non-Self-Governing Territories, and the various committees on decolonization, or the Committee on South West Africa, which from time to time are charged with the responsibility of studying the measures which must be taken by the United Nations to expedite the process of political development for the colonial peoples. In the first place, the comparatively smooth manner in which decolonization took place in all trust territories has helped soften the attitude of most of the colonial powers, except the Portuguese. But, again, this softening might have been caused by the fact that the position of the colonial peoples toward their own status has hardened tremendously since the end of the Second World War. That is to say, the fact that the colonial peoples have become more militant concerning their rights to self-determination and independence, and in many areas they have begun to resort to violence as the only 284

FROM MANDATES TO TRUSTS means of gaining their freedom, thus directly threatening the economic interests of the Western powers, has helped to make the support of the trusteeship alternative an imperative necessity. Secondly, this change of attitude toward international joint responsibility for the development of colonial peoples affected the interpretation of the Charter itself. This change has been so profound that while twenty years ago Chapters XI, XII and XIII of the Charter were drawn to differentiate between the various kinds of dependent territories, today it is very difficult to differentiate between them. Let us take one provision of the Charter as an example: the right to petition. Originally, the right to petition in the United Nations was accorded to those who intended to present information to the Trusteeship Council to help illuminate the issues being discussed there. It was not lawful for anyone to petition in the Committee on Non-Self-Governing Territories or any other committee not concerned with the welfare of the peoples under Trusteeship. However, today every organ of the United Nations which is charged with the responsibility of studying any problem dealing with the welfare of any people under colonial control includes, among its means of gathering information, receiving written and oral petitions. In fact, the right to petition has now been accorded to people who may wish to inform the General Assembly itself, through one or another of its various committees, except the Security Council. It is through this development that even those of us who are under the colonial control of Portugal can now avail ourselves of the facilities of the United Nations to present to the world our case against her. In spite of the fact that Portugal still refuses to admit that the overseas territories are in fact non-self-governing territories and thus subject to the same international scrutiny as any other colony, the United Nations allows petitioners to appear on the committees dealing with non-self-governing territories to present their case against Portugal. Yet, one can remember that less than ten years ago, France was able to block any discussion of matters referring to Algeria, since she considered that country a department or province of France. One of the most important factors which influenced the changes mentioned above is certainly the presence in the United Nations Organization itself of so many representatives of newly independent states, especially from Afro-Asian countries and of progressive socialist states. But again, here we may have reached some sort of 285

THE ABUSE OF RESPONSIBILITY closed circle, namely, that the Trusteeship System, having influenced the policies of powers administering non-self-governing peoples, expedited their progress towards independence; then these peoples, once independent, joined the United Nations and supported those measures and policies which are favourable to the speedy advancement of other peoples who are still non-self-governing. In the meantime, the machinery which was established to carry out this process was influenced at the international level within each of the metropolitan states and in the colonial territories themselves. Thus, a tradition is being built which affects the attitude of all those involved as well as the set legal patterns of behaviour, which sooner or later become fixed. Those powers which try to resist this process towards a speedier decolonization are finding themselves more and more isolated. This is the case of Portugal and the Republic of South Africa in connection with their possessions in Africa: Angola, Mozambique, Guinea (Bissau) and South West Africa, respectively. In conclusion, the idea of international accountability may have started some fifty years ago as a weak suggestion to solve a specific question. As the years passed, its usefulness was found both practical and morally defensible. Between the two world wars, the strength of the imperial powers was such that this weak idea was almost smothered in the struggle amongst the Western Powers for national expansion. But as these same powers found themselves in great difficulties again during the nineteen-forties, they were forced to revive the idea. So it was that at San Francisco the Mandates System was greatly improved upon in the Trusteeship System, and was implemented as the official policy of the United Nations. It is not beyond possibility that in a few more years, when the liberation struggle now taking place in Mozambique, Angola and Guinea (Bissau) will have developed more fully and will have affected the rest of Southern Africa, that even Portugal and the Republic of South Africa will regret that they had not opted for the Trusteeship System in time to avert the catastrophe that will befall them. 286

FROM MANDATES TO TRUSTS 1 Miller, D. H., My Diary at the Paris Peace Conference, Vol. XIV, p. 49. 2 Miller, D. H., op. cit., pp. 24-25. 3 According to the findings of an American Commission which was sent by President Wilson, and which canvassed the opinions of the peoples of the Middle East, making its report in December 1919, the people of the Middle East overwhelmingly favoured immediate independence and were strongly opposed to the Mandates System, which they considered an indirect form of annexation. Editor and Publisher, Vol. IV (2 December 1922), pp. 4-26. 4 The Mandates System, Origin-Principles-Application, (League of Nations Publication, 1945, VI.A.1), p. 34. 5 Minutes of the Permanent Mandates Commission, 7th Session, 1925, p. 128. 6 Wright, Quincy, Mandates under the League, Chicago: University Press, 1930, pp. 232-33. 287

The Legal Case* by lain MacGibbon, Department of Public International Law, University of Edinburgh There has been no lack of findings by political organs that South Africa is in breach of her obligations under the Mandate for South W est Africa. Aspects of the dispute were considered by the International Court in the three Advisory Opinions of 1950, 1955 and 1956.1 The most recent case, however, represented the first occasion on which the legal merits of the central question of South Africa's obligations towards the inhabitants of the Mandated Territory were subjected to comprehensive scrutiny by the appropriate competent and authoritative organs. It is common knowledge that South Africa's record in respect of resolutions of the General Assembly and the Se~urity Council has been one of conspicuous defiance. Whether such a persistent course of non-co-operation amounts to an international delinquency, despite the non-obligatory character of the resolutions in question, is perhaps debatable. Practice does not yet measure up to the characteristically * This analysis of the legal issue was written prior to the Judgement of the International Court; the legal aspect is brought up to date in the postscript: 'The International Court Decides?'

THE LEGAL CASE bold approach to this matter adopted by the late Sir Hersch Lauterpacht who suggested circumstances in which repeated refusal to comply with almost unanimous resolutions might be equated with an abuse of right and attract sanctions.2 On the basis that recommendations, even in series, do not generate obligatory force, the conduct of South Africa to date may have remained within the strict letter of the law. By contrast, a significant feature of this case, if it goes against South Africa, is that then, for the first time, South Africa will be confronted with a decision which is unmistakably binding. The proceedings were instituted doubtless with that aim in view. Only at that stage will it be possible to put South Africa's intention to a conclusive test. At the same time, an equally serious ordeal, with even wider implications, may confront the relatively untried machinery for the administration of international justice. Until a few years ago the standard of respect for the decisions of international tribunals was high enough to allow attention to be diverted almost exclusively to the problem of inducing more States to take the first step towards practical support for the judicial process in international affairs by accepting the compulsory jurisdiction of the International Court in the widest possible range of matters. Commentators recently have sounded a warning against complacent assumptions that consent to appear before the Court would automatically imply consent to abide by its decision in good faith. It has been noted that 'since 1947 there have occurred a number of serious instances of failure, both on the part of the States concerned to comply with, and on the part of the International Organization to enforce, decisions of the Court.'3 The signs cannot be said to augur well for compliance in the South West Africa case. The Respondent State's consent to appear before the Court had to be traced at several removes, linked by an unbroken but fragile chain of judicial reasoning, to an origin almost half a century ago. It was established in 1962 by the narrowest of majorities. These and other factors lend support to the sombre reflection of one leading international lawyer that the 'outcome of the proceedings . . . is fraught with grave uncertainty' .4 289

THE ABUSE OF RESPONSIBILITY LEGAL EFFECT OF A JUDGEMENT The peremptory character of a judgment handed down by the Court in a contentious case is not open to doubt. The rule that decisions of international tribunals are binding on the parties and are to be carried out in good faith has long been firmly rooted in customary international law. Today these obligations are formulated unequivocally in relation to the Court in the provisions of Article 59 of the Statute of the Court5 and Article 94(1) of the Charter of the United Nations." A judgement becomes 'binding on the parties on the day on which it is read in open Court'7 and it is 'final and without appeal'.8 The deliberate limitation in Article 59 of the Statute, giving binding force to each decision only 'in respect of that particular case', may have special relevance in the South West Africa case, where the Court may have to pass upon South Africa's own apartheid laws by implication, since the same laws generally are in force throughout the Mandated territory. The decision, nevertheless, will have binding force only with regard to the position in the Mandated territory. Its impact on the position in the neighbouring territory may eventually be considerable but for the present must remain indirect. ASSESSMENT OF COMPLIANCE Once the judgement is handed down, the case enters what Dr Rosenne has termed the 'post-adjudicative phase'; and the next move is given the initial assumption as to the outcome - with South Africa. Before considering the legal consequences attendant upon the second assumption - non-compliance by South Africa - some consideration must be given to the question of the mode of establishing that the position has been reached at which failure to comply is clear. It is conceivable, though unlikely, that the judgement may provoke an immediate official South African response, in terms of finality, that it has no intention of complying. If so, that position may be noted and the consequence drawn. The probability is stronger that temporizing may take the place of flat refusal. For any unsuccessful litigant there is a good deal of scope for the deployment of a range of dilatory tactics which may be resorted to with varying degrees of good faith, provided there is no expression or necessary implication of eventual non- compliance. One question on which there appears to be a surprising lack of

THE LEGAL CASE authority, and which does not seem to have attracted the attention of writers, is the time-limit, if any, within which an unsuccessful litigant must fulfil the obligations under a judgement. Arrangements regulating this matter are to be found, but rarely, in arbitral compromis,9 but these seem to be confined to the relatively clear-cut question of the time-limit for the payment of monetary awards. Almost necessarily, some time for compliance must be afforded. What a reasonable time- limit should be must surely depend on the nature of the obligations imposed by the decision. Periods ranging from twelve to eighteen months were set in the arbitral compromis referred to above. But entirely different considerations are likely to arise with regard to decisions of a more complex character. The need for caution in assessing the existence or extent of failure to comply is overwhelming. The general observations which one leading authority has made deserve particular notice in relation to the South West Africa case: 'Non- compliance is not always complete and obvious but, having regard to the elements which together constitute the process of executing judgement, may be relative and dependent upon the appreciation of the parties in dispute. The judgement itself may not indicate one single and decisive method of compliance.'0 It may be helpful at this stage to focus attention briefly on the forthcoming judgement. Although any attempt to indicate the likely terms of the decision must be largely speculative - and what follows is submitted with extreme diffidence and without the help of any crystal ball - the Memorials suggest that the Court might confirm the legal force of the Mandate as governing the status of South West Africa; adjudge that South Africa is in breach of her obligations under the Mandate as a result of a number of acts and omissions: extending to South West Africa legislation in various forms implementing a policy of apartheid, applying to the territory political, economic, social and educational policies which fail to promote to the utmost the material and moral well-being and social progress of the inhabitants; establishing military bases in the territory; failing to render annual reports to the General Assembly; failing to transmit petitions from the inhabitants of the territory to the General Assembly; and attempting to modify the terms of the Mandate unilaterally. Some of these violations result from legislative, executive and administrative acts. Judgement in terms of the Memorials would have

THE ABUSE OF RESPONSIBILITY the immediate effect of placing South Africa under an obligation to repeal or revoke the offending instruments, and to dismantle the whole of the relevant administrative machinery. Willingness or otherwise to comply might be gauged within a fairly short space of time as far as these obligations are concerned. But different considerations, methods and time factors are no doubt appropriate to some of the other matters. These hypotheses are outlined merely to draw attention to the potential complexities of establishing non-compliance beyond doubt and to the further difficulties inherent in fixing reasonable standards with regard to the latitude permissible for timelimits. It is not pretended that firm solutions are at hand. In the event of dispute about compliance, the burden of proof to establish grounds for exoneration lies squarely on the unsuccessful litigant which 'has to establish not that it is not guilty of noncompliance, but that it has complied with the judgement to the extent that compliance is possible.'1 One further course of action open to South Africa which would an interpretation of the decision. The more complex the judgement the more likely and the more colourable is recourse to this expedient. Article 60 of the Statute of the Court, as well as stipulating the finality of the judgement, adds: 'In the event of dispute as to the meaning or scope of the judgement, the Court shall construe it upon the request of any party.' An application for revision of the judgement might also be made (Article 61 of the Statute), although, as its admissibility depends on the discovery of some decisive fact unknown at the time of the judgement, it may be considered unlikely to be made in good faith in this case where South Africa's diligent attention to detail has impressed the Court through half a dozen years of painstaking pleading. The Court is to some extent able to safeguard itself against abuse thanks to the provisions of Article 61(3) of its Statute: 'The Court may require compliance with the terms of the judgement before it admits proceedings in revision.' Nevertheless, either form of application could be - and if made would inevitably12 be - productive of delay. Delay in itself does not necessarily work against the proper administration of justice. Carried to excess, no doubt it may. But the consequences of non- compliance with a judgement may be so serious that it seems essential to give full weight to the necessity for minimizing any doubt about what the definitive obligations are with which the unsuccessful party has to comply. 292

THE LEGAL CASE NON-COMPLIANCE AND ENFORCEMENT As soon as failure to comply with a judgement is clearly established the question of enforcement is presented. The importance of the problems involved is generally acknowledged. The forum of debate changes to mark the change in the type of process involved at this stage. It is no longer solely a matter of law, but becomes essentially a political problem. The general point is well made in Rosenne's magisterial work on the Court: 'It is not to be denied that fundamentally the problem of securing compliance with the Court's decisions is but a particular aspect of the more general problem of securing compliance with the decisions of the competent organs of the international community. This is not a mere political problem, but the supreme political problem of international organization.'13 The political element in the enforcement process is signified by the fact that provision is made for securing compliance with judgements not in the Court's Statute but in the Charter. However, before considering the modalities of the enforcement process in an organizational context, the unilateral courses of action open to a successful party must be mentioned. In the circumstances of the case under discussion it may be readily appreciated that unilateral measures of self- help are unlikely to have more than minimal relevance. PERMISSIBLE SELF-HELP Unilateral recourse to various forms of pressure against a defaulting State, ranging from diplomatic protest, through economic measures, up to and including the use of armed force, found acceptance in traditional international law, subject to the preconditions of the clear establishment of default and an unsatisfied demand for compliance or redress, and the requirement of proportionality between the wrong and the remedy. Such methods were acknowledged as appropriate whatever the source of the obligation violated. Provided such pressure does not involve the use of force in a manner contrary to the Charter, it remains a legitimate weapon at the disposal of a successful party. Refusal to comply with a judgement is an international delinquency which justifies the other party in taking action in relation to the delinquent State and its property which would otherwise be unlawful. The forms of diplomatic and 293

THE ABUSE OF RESPONSIBILITY economic pressure available as reprisal measures are countless. Those to be used in any given situation will be selected for their likely efficacy. In the particular circumstances envisaged, it is obvious that recourse to reprisal action by the successful Applicants could hardly have decisive effect. It is arguable, indeed, that the very nature of the fitigation may render the reprisal concept inappropriate. In a political sense, the Applicants, by instituting and maintaining these proceedings, have been acting on behalf of the vast majority of Members of the United Nations who have been frustrated to their attempts to persuade South Africa to abandon her apartheid policy. 14 In a legal sense, Ethiopia and Liberia may be considered as representing not so much their own direct interests (it may be, as South Africa contends, that the dispute does not in fact affect any material interest of the Applicant States or their nationals), but their interests as Members of the League of Nations, and as such vindicating the right and the duty to invoke the jurisdiction of the Court under Article 7 of the Mandate as the only effective recourse for the protection of the sacred trust, since neither the League nor the Council had the capacity to implead the Mandatory before the Court. The obligations of South Africa are not, as to their substance, owed to Ethiopia and Liberia in the normal way. The community interest indicated above should be reflected in measures to secure compliance with these obligations; and there is much to be said from the viewpoint of effectiveness as well as principle for the merits of common action. Among the non-forcible methods of securing compliance with a judgement, one may be singled out as lending itself readily to widespread joint or common implementation, namely the attachment of property of the defaulting State situated outside its territory. As one authority has pointed out, a levy against the assets of a debtor is one of the most obvious methods of enforcing a municipal law judgement, although unknown in international law until recently.5 It is not necessary that the judgement should be one calling for the payment of a sum of money. Recent examples, such as the freezing of Egyptian assets in the United Kingdom and the United States after the Suez nationalization in order to secure future possible claims, lead Dr Schachter to conclude that 'it can certainly be maintained that attachment to satisfy a binding judicial or arbitral decision would be permissible';16 and he goes on to point out that 294

THE LEGAL CASE no question was raised as to the propriety of the United Kingdom's intention to attach Albanian assets in Britain in satisfaction of the judgement in the Corfu Channel case." The United Kingdom, it will be recalled, did not invoke Article 94(2) of the Charter on that occasion. It did, however, attempt to obtain certain monetary gold claimed by Albania as partial satisfaction of the Albania judgment debt. These proceedings raised issues which bear on the prospects of joint action on the part not only of the Applicants but of other States in attaching South African assets in their territories. Assuming the collaboration and consent of other States, the question approximates to that posed generally by Dr Schachter, namely 'whether a third state, not a party to the litigation, has the right, without incurring liability, to transfer assets within its jurisdiction to the state which won a judicial or arbitral award against another state but has been unable to obtain execution of the award'.8 It would be enough for the purpose of the South West Africa case - and, bearing in mind the unusual nature of the locus standi of the Applicants, it might be advisable - to limit the action to the blocking of assets; the question of transfer of assets to the successful litigants might well be open to criticism. Allowing for this modification Dr Schachter's conclusions are significant: 1. That states are entitled under international law (and possibly may be considered under a duty) to assist in the execution of a decision of the International Court, if that decision has not been complied with and the successful party requests such assistance; 2. That such assistance may include transferring to the judgement creditor assets of the judgement debtor which are located in the territory of the third state without obtaining the consent of the debtor state and without obtaining the sanction of the Security Council or a further decision of the International Court; 3. That the right of the third state to effect such transfer is subject to a duty on its part to take necessary measures to safeguard any competing claims of other parties as, for example, by providing for judicial control as to the respective claims of all parties.'19 Further authority for this view may be derived from two passages in the pleadings by Sir Gerald Fitzmaurice (at that time Legal 295

THE ABUSE OF RESPONSIBILITY Adviser of the Foreign Office and Agent for the United Kingdom, and now a Judge of the International Court of Justice) in the Monetary Gold case. Sir Gerald contended that the Albanian share of the gold should be transferred to the United Kingdom in view of the existence of the unsatisfied judgement and 'the general interest, and, indeed, within certain limits, duty, which all countries can be regarded as having to further the implementation of the Court's judgements'.20 Putting the non-compliance position more generally, Sir Gerald stated that 'all countries are, if not bound, at any rate entitled to take all such reasonable steps as may be open to them to prevent such an occurrence, and either individually or by common action to do what they can to ensure that judgements particularly of this Court, are duly implemented and carried out - at any rate, so long as the rights of third countries are respected.'2 The main weakness 6f this line of action has been said to be the absence of a decision by the Court or the Security Council authorizing it. The Court may be considered likely to refuse, on principle, to respond to requests from one party that it suggest or authorize specific methods for complying with its judgement.22 Such authorization could be obtained, however, from the Security Council under Article 94(2) of the Charter in the form of either a decision or a recommendation, or even from the General Assembly. The main reason for preferring a Security Council decision is that, apart from binding Member States to participate in the enforcement, it would override any conflicting obligation which might otherwise affect the rights of non-participating third States. FORCIBLE SELF-HELP The reasons suggested above as telling against unilateral enforcement action by non-forcible forms of pressure tell equally against the unilateral use of force. Moreover, the relevant provisions of the Charter appear toip~ohlbit forceful self- help. It is orthodox doctrine that the use of force by States has been outlawed by the Charter, with the exceptions of force used in selfdefence in the event of an armed attack and force used pursuant to authorization by a competent organ of the United Nations. Article 2(4) obliges States to 'refrain in their international relations from the threat or use of force-against the territorial integrity or political independence of any state, or in any other manner inconsistent with THE LEGAL CASE the Purposes of the United Nations'. Article 2(3) obliges States to settle their disputes by peaceful means. The suggestion has been made, however, that a successful party which, after invoking Article 94(2), still fails to obtain satisfaction, might properly compel coiiplianc by force. Such a use of force, it is argued, is not directed against the territorial integrity or political independence of any State, and is not inconsistent with the purposes of the United Nations. As the primary purpose of the Charter is the maintenance of peace, this argument is difficult to accept. It has been condemned outright as 'wrong in principle, discredited by authority, and most dangerous in practice' .21 The broad proposition that force can be used to vindicate a legal right is unacceptable as it stands. The Court's judgment in the Corfu Channel case helped to put the matter in perspective. The Court seems to have regarded as legitimate, within precise and narrow limits, the forcible affirmation of a legal right of a particular kind against an almost certain attempt forcibly to prevent its exercise, but it clearly condemned forcible self-help to obtain redress for a right already violated. The naval self-help operation was castigated by the Court as 'the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law.'24 These observations, together with the Charter provisions, militate overwhelmingly against the arguments condoning the unilateral use of force to secure compliance with a judgement. Permitting forcible self-help serves not to uphold the law but to expose a serious deficiency in it. ENFORCEMENT UNDER THE CHARTER OF THE UNITED NATIONS One provision of the Charter dominates the politico-legal field of enforcement and provides the natural starting point for any discussion of what Rosenne terms 'institutional enforcement'. Within the limits of what it was intended to achieve, the wording of paragraph 2 of Article 94 is conspicuous for its lack of ambiguity. It reads: 'If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if

THE ABUSE OF RESPONSIBILITY it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.' The main features of Article 94(2) require little in the way of elaboration. The way to enforcement is opened by the refusal or failure of a party to fulfil the obligations imposed upon it by the judgment. The successful party is then entitled, but not obliged, to have recourse to the Security Council which, in turn, is empowered, but not obliged to take certain action. The reasons, stated or implicit, which lead the Security Council to adopt one course of action rather than another need not be - indeed are unlikely to be - based on strictly legal considerations. Enforcement, it has been said, 'partakes of the quality of an entirely new dispute to be regulated by political means.'25 Clearly, a very wide measure of discretion is conferred on the Security Council.26 It may not, however, assume the functions of an appellate tribunal and reverse or modify the terms of the judgement. It 'may intervene in the consequences of the res judicata while leaving intact the res judicata as such.'27 If political considerations counsel caution - as well they may after judgement in the South West Africa case - while the judgement stands from the day of its pronouncement as final, it is nevertheless open to the Security Council under Article 94(2) to suggest a moratorium28 which it could implement by a decision to suspend the operation of Article 76 of the Rules of Court, thereby interrupting the running of whatever reasonable period of time the unsuccessful party is allowed for complying with the judgement. The authority of the Court, functus officio at the relevant time, would not necessarily be undermined by a temporary suspension of the binding force of its judgement, although there must be limits to the extent to which, even as a partner, the Security Council may properly impede the administration of justice. Its role should approximate to that of trustee rather than liquidator. The fact that there is a judgement in the background as the starting point for proceedings under Article 94(2) is not of course forgotten, and the position of the Court may be safeguarded by emphasizing the closing words of that Article. In Rosenne's words, 'when the injured judgement creditor has recourse to the Security Council under this Article, any recommendation, and any decision, must be 'upon measures to be taken to give effect to the judgement'. In dealing with an affair of this nature the discretion of the Security Council 298

THE LEGAL CASE is limited to: whether to take the matter on its agenda and to act or not; and if so, whether to make a recommendation, of problematic legal value but of undisputed political importance, or to take a binding decision, always in the direction indicated. The Council cannot destroy rights adjudicated by the Court.'29 VOTING REQUIREMENT IN THE SECURITY COUNCIL30 As neither of the positive categories of Security Council action envisaged by Article 94(2) is a procedural matter in the sense of Article 27(2)- a point on which writers appear to be in general agreement - the valid passage of a resolution recommending or deciding upon enforcement measures requires the affirmative vote of nine Members, including the concurring vote of the five Permanent Members. Although the requirement of at least nine affirmative votes is mandatory for a substantive resolution, the restrictive effect of the veto has been modified in practice by treating the abstention of a Permanent Member neither as a vote to be reckoned in the total of affirmative votes nor as a negative vote preventing a resolution being passed. The propriety of this convenient institutional custom is probably now beyond challenge. It may be noted further that resolutions adopted under Article 94(2) do not fall within the proviso to Article 27(3) which states that 'in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting'. In the present case, this is not a specially relevant factor because South Africa is not a Member of the Security Council; and if it were to participate in the proceedings of the Council under the terms of Article 31 or Article 32 it would do so without vote. COMPETENCE OF THE SECURITY COUNCIL It is doubtless possible - and, some might add, it may be desirable for the Security Council to characterize non- compliance with a judgement as a threat to the peace or a breach of the peace under Article 39 and to make use of its express Chapter VII powers to bring about compliance as an essential part of the process of maintaining or restoring peace. Provided the circumstances warrant such a characterization, and provided the determination is reached in 299

THE ABUSE OF RESPONSIBILITY good time, procedure under Chapter VII is not open to objection. But is it the only appropriate procedure? Here one meets the problem of whether the measures which the Security Council may recommend or decide upon in terms of Article 94(2) may include the measures spelled out in Articles 41 and 42. On reflection, there appear to be good reasons to doubt whether any relationship was intended or should be established between the two sets of provisions. The invocation of Articles 41 and 42 is said to be dependent upon a prior determination, express or implied, under Article 39 that there exists a threat to the peace, breach of the peace or act of aggression. In the context of Chapter VII that is so: but otherwise the proposition seems too broadly worded. On the assumption that the application of sanctions depends upon the existence of an Article 39 situation, the argument goes, any action proposed by the Security Council under Article 94 - which does not of course form part of Chapter VII - must fall short of the measures for which Articles 41 and 42 provide, unless the circumstances of the failure to comply with the judgement are such as to fall within the terms of Article 39, in which case the measures indicated in Articles 41 and 42 may properly be utilized. To put the problem in these terms begs the initial question of whether there is any necessary connection between the provisions of Articles 41 and 42, on the one hand, and Article 94(2), on the other, and assumes that there is a relationship which has to be explained away. A number of factors suggest that the problem may be an artificial one. First, there is nothing in the text of Article 94(2) to suggest that it should be read in connection with, or subject to, any provision in Chapter VII. Secondly, if the Security Council is empowered to decide upon mandatory sanctions only if there has been a prior determination by it of the existence of one of the Article 39 situations, and the circumstances of non- compliance must be similarly determined to fall within one of those situations, then the mandatory provisions of Article 94(2) become redundant. The eventualities are catered for completely by Chapter VII. Thirdly, the wording of Articles 41 and 42 presents an insuperable obstacle to construing the measures envisaged by Article 94(2) in such a way as to make them fall short of the measures referred to in Articles 41 and 42. Those Chapter VII Articles are, each with regard to its respective sphere, of all-embracing scope. Neither limits its range of measures, 300

THE LEGAL CASE save that those under Article 42 must be directed to the end of maintaining or restoring peace. The specification of measures is illustrative, not exhaustive.31 It is difficult to see how the measures envisaged by Article 94(2) could possibly have been intended to be confined to measures exclusive of those comprehended by the catch-all wording of Articles 41 and 42, save by the equally inept supposition that the non-mandatory measures are intended to be confined to those included in Chapter VI. The latter course would make the provisions of Article 94(2) entirely redundant. Indeed, the plain meaning of the wording of Article 94(2) appears to vest the Security Council with the widest possible discretion. It must be emphasized that Article 94(2) was intended to be, as from its text and its position in the Charter it would appear to be, an additional basis of competence for the Security Council, unconnected with other provisions of the Charter giving the Security Council other and differently described powers. The drafting history of the Article makes it quite clear that it was intended to furnish the Security Council with authority over and above, and independently of, the competence it had been given with regard to matters relating to international peace and security.32 The very absence of definition attaching to the events which must precede the setting in motion of action under Chapter VII is no doubt sufficient to justify the requirement of a determination under Article 39. The same consideration hardly holds good for Article 94(2) where the delict which justifies the Security Council in setting in motion the procedures of enforcement is the objectively definable event of failure to comply with a judgement. The foregoing considerations suggest that Article 94(2) may be read as empowering the Security Council to make any recommendations or decide upon any measure which it considers apt to enable effect to be given to the judgement. The range of possible action appears to cover military, economic, and any other appropriate form of pressure. Doubt has been expressed by one authority as to 'whether the operations contemplated by Article 42 involving the use of armed force "to maintain or restore international peace" are within the Council's authority under Article 94(2), in the absence of the requisite determination under Article 39.'33 This doubt suggests that two factors are being overlooked. First, the purpose of measures under Article 94(2) is to give effect to a judgement in a case of noncompliance, not to maintain or restore peace which may not have

THE ABUSE OF RESPONSIBILITY been at risk. And secondly, if (as the same authority observes) Article 94(2) confers independent authority on the Council, independence includes independence of Article 39. Dr Jenks has put the matter in another way: 'It is immaterial whether or not Article 41 . . . and Article 42 . . . are applicable in the absence of a threat to the peace, breach of the peace or act of aggression. In the absence of such a threat, breach or act Articles 41 and 42 are not as such applicable to decisions under Article 94(2) (and they are probably not), there is nothing to prevent the Security Council from taking by virtue of the general terms of Article 94 action identical with that specified in Articles 41 and 42 provided that such action is appropriate for the purpose of securing compliance with the decision of the Court. Such action, if taken, would in virtue of Article 25 of the Charter be binding on all Members of the United Nations.'34 COMPETENCE OF THE GENERAL ASSEMBLY If the Security Council is prevented from fulfilling its function under Article 94(2) because of the negative vote of a Permanent Member, the question arises of whether the General Assembly may assume responsibility in the premises, and if so, within what limits it may act. This is a matter on which there is nothing in the way of direct authority or practice and on which the writers are divided. The possibility has been noted above of the Security Council treating non- compliance as a threat to or breach of the peace. There seems to be no reason why the Uniting for Peace machinery should not be invoked with regard to refusal to comply with a judgement when the Security Council is prevented from acting and when noncompliance threatens or breaks international peace, on the same conditions and subject to the same limitations as any other situation which represents such a threat or breach. Even if it is not accepted that such a course does not violate the terms of the Charter, there is no certainty that the General Assembly could validly authorize measures involving the use of force to effect compliance. The Uniting for Peace Resolution, which might seem an obvious source of authority, has been used in practice only as a means of transferring the forum of debate and subsequent action from the Council to the Assembly. It has not been relied upon as authority for the General Assembly to recommend the use of force. 302

THE LEGAL CASE Under it the General Assembly appears to have limited its power to make such a recommendation to cases of breach of the peace and aggression, leaving aside the category of threat to the peace, to which non-compliance with a judgement is most likely to approximate. Most of the possible general bases of General Assembly competence in this field were discussed by the Court in the Expenses Opinion.35 Although the Court apparently approved the authorization of peace-keeping operations with the consent and at the request of the State or States concerned, nowhere does it sustain any grant of power to the General Assembly to recommend 'coercive or enforcement' measures, either under the Uniting for Peace Resolution or under the Charter generally. On the contrary, it underlines more than once that such measures fall within the exclusive province of the Security Council. Even without the precondition of the existence of an Article 39 situation, there seems to be no reason for dismissing the possibility of invoking in similar circumstances a procedure analogous to the Uniting for Peace procedure in order to meet the same type of difficulty. The power enjoyed by the General Assembly under Article 10 is framed in wide enough terms to embrace a power to make recommendations to Member States in order to achieve the same purposes as those of Article 94(2). It may be argued that the crucial character of the need to maintain international peace and security provides a justification for straining the letter of the law in the instance of the Uniting for Peace Resolution which would be lacking in the very different circumstances of a single failure to comply with a judgement of the Court, which might not even constitute a threat to the peace. While admitting the contrasts, it may be wise not to make too much of them. Governments do not openly deny the importance of the rule of law in international affairs. And it is not neglected in the Charter. To pass over with indifference a deliberate flouting of the Organization's 'principal judicial organ' would be as serious a blow to the standing of the Court as could be devised, as well as weakening respect for law. In addition to the general principle involved, much of the practical importance of insisting on compliance may depend on the actual case. The particular litigation which has prompted this paper is perhaps the most important one which the present Court has faced. The issues involved are at the heart of the most potentially dangerous

THE ABUSE OF RESPONSIBILITY conflict currently dividing mankind. There is no issue on which a breakdown of law and order could prove more tragic. It would be unwise to underestimate the pervasive values of the rule of law; and it should not be overlooked that 'We the Peoples of the United Nations' determined in the Preamble of the Charter 'to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained'. Uniting for law and order requires and reflects the same devotion to the well-being of the United Nations as does uniting for peace. 304

THE LEGAL CASE 1 I.C.J. Reports 1950, p. 128; 1955, p. 67; 1956, p. 23. A useful and concise account of these Opinions, and a valuable survey of the general background and of the legal considerations relevant to the application of sanctions will be found in the contribution by Professor D. H. N. Johnson to the 1964 International Conference on Economic Sanctions against South Africa, printed in Sanctions against South Africa (Penguin Special, 1964, ed. Segal), pp. 62-84. 2 I.C.J. Reports 1955, p. 119. 3 Rosenne The International Court of Justice (1957), p. 74, see also Jenks, The Prospects of International Adjudication (1964), pp. 664-665. 4 Jenks, op cit., p. 665. 5 'The decision of the Court has no binding force except between the parties and in respect of that particular case.' Despite the negative form of wording, the implication is clear and necessary. 6 'Each Member of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party.' 7 Article 76 of the Rules of Court. 8 Article 60 of the Statute of the Court. 9 See, e.g., Commentary on the Draft Convention on Arbitral Procedure prepared by the United Nations Secretariat in 1955 (A/CN.4/92), pp. 252 ff. 10 Roseane, op. cit., p. 91. 11 Rosenne, op. cit., p. 92. 12 See Articles 78-81 of the Rules of Court. 13 Op. cit., p. 77. 14 In the earlier phase of this case the Court pointed out that 'behind the present dispute there is another and similar disagreement on points of law and face-a similar conflict of legal views and interests-between the Respondents . . . and the other Members of the United Nations, holding identical views with the Applicants' (I.C.J. Reports 1962, p. 345). 15 Schachter, The Enforcement of International Judicial and Arbitral Decisions, A.J.I.L. 54 (1960), p. 7. 16 Ibid., p. 8. The estimated amounts of Egyptian assets frozen indicate the potential of this method: in the U.K., $50m. 17 Loc. cit. 18 Loc. cit. 19 Ibid., pp. 11-12. 305

THE ABUSE OF RESPONSIBILITY 20 I.C.J. Pleadings etc., Case of the Monetary Gold removed from Rome in 1943, p. 121. 21 Ibid., p. 126. 22 See Rosenne, op. cit., pp. 75-77. 23 Jenks, op. cit., p. 691. 24 I.C.J. Reports 1949, p. 35. 25 Rosenne, op. cit., p. 102. 26 Compare Article 13(4) of the League Covenant: 'In the event of failure to carry out' an arbitral or judicial decision 'the Council shall propose what steps should be taken to give effect thereto.' Rosenne notes that under the Charter 'the Security Council is not placed in the artificial position of being designated as the automatic law-enforcement agency of the Court' (op. cit., p. 104). 27 Rosenne, op. cit., p. 106. 28 Rosenne, loc. cit. 29 Ibid., p. 105. 30 The effect of the amendments to Articles 23 and 27 is to enlarge the membership of the Security Council from 1 January 1966 from 11 to 15 and to require 9 affirmative votes where 7 were required before. 31 Measures under Article 41 'may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.' Action under Article 42 'may include demonstrations, blockade, and other operations by air, sea, or land forces'. 32 See, e.g., Schachter, op. cit., p. 19 and note 52. 33 Schachter, op. cit., p. 22. 34 Op. cit., p. 694. 35 I.C.J. Reports 1962, p. 151. 306 5. The Conference Findings The International Conference on South West Africa divided into four Commissions, each of which issued a report: these reports were then submitted to the final plenary session and, with a few amendments, unanimously adopted to constitute the report of the whole conference. The following are the final versions of the four reports. REPORT OF COMMISSION 1 COMMISSIONERS' TERMS OF REFERENCE: To examine the policy and record of the South African Administration in South West Africa. 1. The task of this Commission has been to examine the economic, social and political situation in South West Africa. For this purpose it considered a number of specialist papers, some of them written by South West Africans themselves, on the condition of the people of the territory.

THE CONFERENCE FINDINGS ECONOMIC CONDITIONS 2. South West Africa is characterized by a peculiar type of economic dualism. This has emerged from a colonial pattern of development on the one hand, and on the other, the socio-political apparatus of apartheid developed in 45 years of South African rule. South West Africa is potentially a rich country in terms of per capita resource endowment. The economy of the country is operated, however, completely in the interests of the white settler minority and foreign investors. Any benefits which have accrued to the African population have been entirely incidental. 3. The figures for land distribution show that the white settlers own twice the amount of land set aside for the Africans, who outnumber the whites 7 to 1. The Government of South Africa concedes that virtually none of the existing African areas has been able to achieve more than a subsistence economy. 4. The claim of the South African Government that the African population in South West Africa has a higher standard of living than in other African countries is untenable. The claim can be sustained only by taking average figures for the country as a whole. When average statistics for per capita income, public expenditure and social services are broken down into separate white and African categories, it emerges very clearly that the present economic status, education and health facilities, social services and, above all, future prospects of the African population are inferior to standards and prospects in independent African countries. 5. The Commission also examined the planning proposals for the future contained in the Odendaal Report. The Commission is satisfied that these proposals would perpetuate the unbalanced economic structure which at present benefits the white settler minority and foreign investors at the expense of the African people. The Odendaal plan cannot but widen the yawning economic gap that already exists between the white and African communities. The uprooting of populations to form 11 artificial territorial groupings - the socalled 'homelands' - will not only thwart economic growth but will also produce social disruption and insecurity. 308

THE CONFERENCE FINDINGS LAND AND LABOUR 6. The prosperity of the white settler community and the foreign corporations depends mainly on cheap African labour. Land policy has been deliberately designed to create a labour surplus. The combined pressures of land shortage and poverty have forced Africans to leave their rural homes for the white labour areas. Thus has been devised an indirect system of forced labour. 7. The contract system, under which Africans are recruited by a semi-Government monopoly, keeps wages depressed and operates a system under which men are taken from their homes and families for periods of between 6 and 18 months to be herded into bachelor compounds in the Police Zone. This leads to the breaking up of families and a disintegration of society. 8. The Government has imposed harsh measures such as the notorious Pass Laws to maintain this inhuman system. These measures include the Native Administration Proclamation of 1922, the Native (Urban Areas) Proclamation of 1951, and the Vagrancy Proclamation of 1920. 9. Neither the Administration nor employers recognize African trade unions. Strikes by African workers are a criminal offence. The denial of the right to organize, and the exclusion of Africans from any system of collective bargaining, contribute to low wages and impoverishment. SOCIAL CONDITIONS 10. The great disparities of income and wealth that exist between the white settlers and the Africans are reflected in the extent and nature of the education, health and other social services available. 11. The educational system has been a clear expression of South Africa's race rule. Educational policy props up white ascendancy, and its record has been one of conspicuous neglect of the African people. In 1962 only 0.3% of African pupils were in secondary classes. Of the children at school no less than 90.7% were in the four lower primary classes, and 68.8% were in the sub-standards. 12. The education of the white child prepares him for his dominant role; the education given African children prepares them for their 309

THE CONFERENCE FINDINGS subordinate function in the community. The Commission was given impressive evidence showing the markedly different nature of education offered to Africans. 13. In years to come - if the South African administration is left in control - the education system will be even more damaging than it has been in the past. The policy of community responsibility for education throws the burden of subsidizing education on to the poorest and most neglected sections of the community. The costs of expanding educational services will have to be met by the Africans themselves, the group least able, under apartheid, to finance its own services. This policy dooms the African to remain permanently submerged. 14. The African population is similarly deprived of other social services. For instance, there are only four medical practitioners for a population of 203,000 Africans in Ovamboland. There is no provision at all for any kind of welfare services, pension schemes and other benefits for the African population, whereas they do exist in ample measure for the whites. The Odendaal Report explains the omission of services for Africans in the following words: 'In the case of most non-white population groups who adhere to their traditional way of life, no reference can be made to organised welfare services, since such organisations do not exist. Such services as were rendered gradually evolved from the exigencies of their particular living conditions and were more in the nature of folk customs than of organised welfare services' (paragraph 916). The traditional society which cared for the aged has been broken down; in any case, it cannot cope with the human wreckage created by apartheid. 15. The Government of South Africa does not provide figures for mortality rates and other health statistics for the African population, although it has been asked by the UN Trusteeship Council to do so. The average life expectancy for the African population is estimated to be about half that of the Whites. POLITICAL REPRESSION 16. South Africa has extended its internal system of arbitrary rule 310

THE CONFERENCE FINDINGS to the African inhabitants of the territory. A wide range of prohibitions and coercive measures has been introduced for two major reasons. One is to drive peasants off the land into the labour market, and this is done by a reduction of land-holdings, regressive taxation systems, and studied neglect of economic and social welfare in the reserved areas. Secondly, the administration applies traditional techniques of colonial domination to keep Africans in subjection, and to prevent them from organizing political movements for their liberation. 17. The President of the Republic of South Africa has been declared the Supreme Chief of all Africans. Acting in this capacity, he and the Ministers who issue orders in his name can appoint and remove Chiefs at will, divide or amalgamate tribal communities, deport groups and banish individuals. His powers are drastic and virtually unlimited. He can order the removal of any person from one part of the territory to another without trial and without right of appeal to courts of law. South Africa applies to South West Africa the formidable battery of oppressive statutes which have been devised to crush the protests of subject peoples against arbitrary rule. South Africa's Minister of Justice can prohibit the holding of meetings and the publication of newspapers; he can ban persons from specified areas and order the imprisonment of those who are said to have information required by the police. 18. Africans are excluded from the instruments of social control which are monopolized by the white bureaucracy. Political leaders who attempt to develop national parties, trade unionists who attempt to organize wage earners in defence of their interests, are harassed by the police and magistrates, or exiled from their home territories. ECONOMIC AND POLITICAL VIABILITY OF SOUTH WEST AFRICA AS AN INDEPENDENT COUNTRY 19. The Commission gave particular consideration to the argument that the country is economically unviable and that it is therefore not capable of political independence. The Commission found that there was no truth whatsoever in this assertion. South West Africa is a rich country in terms of per capita resource endowment. Its large excess of exports over imports is capable of financing balanced

THE CONFERENCE FINDINGS economic development in the country. At the moment, however, this surplus is frittered away, and most of it accrues to the foreign corporations which exploit the mineral wealth of the country. For instance, in 1962, 32% of the gross domestic product of the country went to foreigners in the form of dividends, interest and other payments. Such a high rate of foreign exploitation has rarely been matched in history. The figures for savings and capital formation clearly show that South West Africa is capable of generating its own savings for economic development and that it does not need to depend on foreign borrowing. In this respect, therefore, it is more fortunate than almost any other emerging country. This potential will, however, only be realized for the progress of the whole population if white settler domination and South African colonial rule are liquidated. TERMINATION OF THE MANDATE 20. Commission 1 finds that South Africa's record and her expressed intentions fall lamentably short of the terms of the trust. The people of South West Africa cannot evolve into a national community under the conditions of colonial rule. South Africa has transgressed the elementary principles responsible for the advancement of the inhabitants of a trust territory. Far from aiding their development towards self-government and economic independence, apartheid has erected barriers to obstruct advance towards the establishment of a stable and independent society. Commission 1 is forced to the conclusion that as long as South African control and domination continue there will be no betterment in the conditions of the African people. Balanced economic development and equitable sharing cannot take place without political independence and the complete removal of apartheid. 21. The evidence proves conclusively that South Africa has disproved her competence to help better the lives of the South West African people. It shows conclusively that she has never had even the intention to advance the interests of the people placed in her trust. Lacking both the will and the competence essential to steer South West African progress, the South African Goverment's hold over the country must immediately be severed and the mandate terminated forthwith.

THE CONFERENCE FINDINGS INTERNATIONAL RESPONSIBILITY 22. The economic, political and social conditions of South West Africa have produced an explosive situation. There do not exist any constitutional or legal channels for the African population to express its legitimate grievances. The progressive deterioration in relations between Africans and white settlers must increasingly provoke violent resistance to white supremacy. Immediate intervention of the international community is called for to prevent the steady erosion of human values, the degradation of a whole people to the level of serfs, and a consequent threat to peace. RECOMMENDATIONS OF COMMISSION 1 23. This Commission is convinced that the evidence placed before it provides ample proof that South Africa has cynically broken all international instruments relating to human rights. The Commission feels that it is vital to place the facts about South West Africa bef.ore world public opinion, especially before the people of the Western-bloc countries, where South African racialist propaganda has been most widespread. 24. Therefore the Commission recommends: (a) That UNESCO, ILO and other international bodies be asked to publish and to distribute the findings of this Conference: (b) that all countries be urged to invite leaders of South West African political organizations to visit them in order to put the case for immediate independence of the country: (c) that the organizations and governments represented at this Conference be asked to finance the visits; and arrange for the South West African leaders: i meetings with their respective Governments; ii public meetings; iii television, radio and news conferences; iv and fund-raising activities to aid the South West African organizations. 313

THE CONFERENCE FINDINGS REPORT OF COMMISSION 2 1. The Second Commission was charged by the Conference with the responsibility for examining the nature of the relations between South Africa and South West Africa. The Commission considered in detail a number of expert papers on various aspects of these relations and on the economic and social conditions of the Territory. It came to the unanimous conclusion that the claim of the South African Government that its policies are and have been to the advantage of the people of South West Africa is totally invalid. 2. South Africa legislates for the Territory. It determines the form and powers of its administration and moulds the structures of its society. It not only trades with the Territory, but largely dictates the conditions of its trading with all countries. South Africa thus determines the nature of the South West African economy and the course of its development. 3. The evidence placed before the Commission indicates that these massive powers have been used by South Africa to further the interests of a section of its own people, to the total detriment of the interests of the South West African population. South Africa was given a mandate by the League of Nations to administer South West Africa in order to promote the advancement of its people and lead them towards economic, political and social independence; but in fact South African policy has led to the impoverishment of the territory, the retardation of the educational and social progress of its indigenous population, and the exploitation of the natural and human resources of the territory to further the ends of South Africa and the small white minority in the Police Zone of South West Africa. 4. The Commission found that South West Africa, and particularly the Caprivi Strip, is considered by South Africa to be of vital strategic importance to her. There are good reasons for believing that South Africa has already contravened the Mandate by the establishment of military bases and facilities in South West Africa. In no way can these be justified as existing for the defence of the inhabitants of the Territory. 5. Though not at present a rich or developed economic entity, South West Africa has potentialities which, properly used, would

THE CONFERENCE FINDINGS lead to the enrichment of its people and growth of its economy. Any underdeveloped territory is capable of developing in a variety of ways - either in the interests of the indigenous people or to serve the ends of some external interest. In the case of South West Africa the present pattern of development is the outcome of a process in which the expansion of world markets and policies of apartheid have been the most influential factors. 6. The Commission has attempted to determine whether the economic development which the Territory has experienced can be regarded as progress in any reasonable sense of the term. In this context it has examined the South African claim that the rate of economic growth in South West Africa has been 8% a year as compared to a lower rate in most other African countries. An examination of the actual position has, however, shown that this growth has been concentrated in the small sector of white interests in the Territory, and the vast majority of the African population has experienced little or no economic progress. 7. The process of economic development normally begins in a small 'modern' sector whose influence, as it is extended throughout the relatively backward subsistence sector, helps to transform the whole society. Economic and social policy in the early stages of development must therefore increase the contacts between the two sectors in order to further the acquisition of skills and to facilitate the accumulation of capital by the economy as a whole. In the case of South West Africa, economic and social policy has had exactly the opposite effect. The majority of the population living in the subsistence sector has not been allowed to acquire the skills or the incentives or to accumulate the capital required for promoting general economic progress. 8. This fact is reflected in the extraordinary disparity of income levels in the 'modem' and the backward sectors. In 1956 per capita income in the Police Zone was £176 whereas it was only £8 10s outside the Zone. It is unlikely, in the view of the Commission, that the per capita income in the subsistence sector is much higher today. In the Police Zone itself there are great disparities between the incomes of different groups, as illustrated by the wages paid to mine workers (£1,200 per annum in the case of Whites, and only £100 per annum in the case of Non-Whites). THE CONFERENCE FINDINGS 9. The growth of the 'modern' sector, furthermore, is unlikely in present circumstances to raise the living standards of the Non-White areas. The systematic exclusion of the Non-White population from almost any contacts with modern techniques and institutions makes it impossible for them to learn to help themselves. The grossly unequal distribution of income, furthermore, constitutes a permanent obstacle to the development of manufacturing industries, which cannot expand without much larger domestic markets. 10. The Commission has also noted that the growth of the 'modern' sector has been based mainly on the rapid exploitation of wasting assets. Some of these assets, and, in particular, the known deposits of diamonds and other minerals, are likely to be exhausted in 20 to 25 years. The foreign exchange earned by their exploitation has so far been used to finance high levels of consumption for the white minority, foreign dividends, and an unbalanced programme of largely unproductive public expenditure. If the permanent interests of the indigenous population of South West Africa had been kept in mind, those earnings would undoubtedly have been used to finance a diversified programme of development with special emphasis on the modernization of agriculture in the subsistence sectors. The Commission has therefore concluded that the policy of South Africa with regard to these assets has jeopardized the future of the Territory. 11. The Commission has sought to ascertain the motives behind a policy which so flagrantly ignores the interests of the people of the Territory. It has come to the conclusion that the purpose of South African policy has been primarily to foster rapidly expanding opportunities for enterprise and investment by South African nationals and foreign corporations. 12. South West Africa is almost unique in the extent to which it is dependent on foreign markets and allows the earnings from domestic production to pass to non- residents. An average of 32% per annum of the value of domestic product was paid to foreigners in the years 1958 to 1962. The Commission further noted that this drain has been growing in recent years. Thus the contribution of South West Africa's resources and labour to the income of foreigners has been excessive. 13. The Commission found that within the Territory the interests of 316

THE CONFERENCE FINDINGS the Non-White masses have been totally ignored. They have been deliberately reduced to a condition in which they are incapable of maintaining themselves economically and unable to survive without the employment offered by industry and agriculture within the Police Zone at grossly unjust wages. 14. The Commission has been led to the conclusion that the land policy of the Administration began as an attempt to provide room for white settlers by forcible expulsion of the indigenous population. The area of Non-White residence was progressively diminished over the period of the Mandate until, by 1962, some 5,000 white farms occupied 480o of the total area of South West Africa whereas more than 350,000 Africans were forced to live on less than 25% of the land, some of which is incapable of providing subsistence. Overcrowding and exhaustion of the land made the areas of Non-White settlement incapable of sustaining the growing population and compel the African to depend on the employment offered by agriculture and industry in the Police Zone. Today the predominant purpose of this land policy appears to be to ensure a permanent supply of cheap labour. 15. In 1953 an Ad Hoc Committee of the United Nations and the International Labour Organization found that the pass system was used for 'directing a supply of ample and consequently cheap labour towards regions where it is required for economic reasons'. The Committee argued that the ultimate consequence of the system was 'to compel the Native population to contribute, by their labour, to the economic policies of the country'. In South West Africa the system of pass laws has been carried to its logical extreme and has virtually legalized a system of forced labour. In the opinion of the Commission the emergence of this system of enforced labour is a major cause of the peculiar pattern of development which the Territory has experienced. 16. The evidence before the Commission confirmed Dr Simons's assessment that 'South West Africa has been absorbed in South Africa's colonial structure'. This does not, however, provide any basis for the South African contention that South West Africa would not be viable as a separate entity. The fact is that almost no capital emanating from South Africa has been used for the development of the non-Police Zone of South West Africa. The Territory

THE CONFERENCE FINDINGS has been virtually self-financing. The merging of South West African accounts with those of South Africa has concealed the actual relation of capital flows between the two, and obscures the fact that the Territory has been a net capital exporter. Almost all subsidies paid by South Africa (i.e. railways and transport) can be considered as necessary for South Africa's own trade. 17. About a quarter of South West Africa's merchandise exports go to South Africa, and three- quarters of her imports come from the Republic. Nevertheless alternative markets for these imports and exports could easily be found. The extent and pattern of current trade between the two countries is largely the result of the existing customs union, and South West Africa would gain substantially by expanding trade relations with other countries and exploring alternative cheaper markets for imports. 18. South West Africa is thus almost uniquely fortunate compared with other underdeveloped countries. At present it runs an export surplus of over 40% of its gross domestic product. This would provide a firm foundation for the necessary development investment. Further sources of public revenue exist in the potential of import and export duties at present precluded by the customs union and in the realization of appropriate royalties from exploiters of mineral resources. 19. The Commission urges that special studies be undertaken to examine the economic possibilities of South West Africa and recommends that the UN Technical Committee's functions be enlarged to work out programmes of development in association with South West African nationals, and other bodies interested in the development of the Territory. 20. On the evidence available to the Commission, it is convinced that South West Africa is at present capable of independent existence; but the longer South African control is maintained, the greater will be the danger to its independent economic viability. Mineral resources are being plundered. They may well be entirely exhausted in the next 20 years. The vast export surplus they yield, instead of being used for the development of the Territory, flows out as dividends to non- residents. Income disparities are growing. The education programme for the indigenous population is extremely limited. The fragmenting and divisive effects of apartheid are steadily in-

THE CONFERENCE FINDINGS creasing. To avoid great human suffering; to remove gross injustices; to safeguard the economic future of the Territory; to eliminate a source of disaffection and instability for the whole continent, the removal of South West Africa from the control of South Africa is a matter of desperate urgency. REPORT OF COMMISSION 3 COMMISSIONS' TERMS OF REFERENCE: To examine the sources of international responsibility, the development of international accountability, and the crisis for the international community which has resulted from South Africa's maladministration of South West Africa and its defiance of the United Nations. ORIGINS AND BACKGROUND 1. As a background to the present situation in South West Africa, the Commission heard a paper by Dr Helmut Bley on German colonialism in South West Africa in the period 1904-1914. Dr Bley's paper established that the war waged by the Germans against the Herero and the Nama people from 1904-1907 and the decrees enacted during that time were such as to shatter the social organization of the people. The war was conducted by the military as a war of extermination, ineffectually opposed, mainly for economic reasons, by sectors of the settlers and the German government. The colonial decrees were designed to ensure the absolute social supremacy of the white settlers and the dispersal of the tribes. A policy was pursued of incorporating individual Africans into the European economic system as a subjugated labour force. In the years after the war, strict social segregation was maintained by the German settlers. African labourers and their families suffered severely from the results of the war and from harsh treatment by employers. Wages were inadequate for the maintenance of a sufficient diet and there was much physical and social distress. Until the end of German rule in South West Africa, the subjugation of the Africans and their exploitation as a labouring class remained the basis of German policy. 2. Professor Roger Louis presented a paper on the genesis of the

THE CONFERENCE FINDINGS mandate. It was shown that before the First World War opinion in England and among Whites in South Africa was not hostile to German colonial administration in South West Africa. Criticism of German colonialism was stimulated by the outbreak of war and by the military threat presented by a South West Africa under German control. After the capture of South West Africa by South African forces, opinion in South Africa and that of Smuts, then a South African Minister and a member of the British Imperial War Cabinet, as well as of members of the British Government, was that the territory should be annexed to South Africa after the war. It was not considered necessary to consult opinion in South West Africa by plebiscite, and the wish of the people of the territory to submit to a British administration was taken for granted. 3. Smuts saw the incorporation of South West Africa into South Africa as an important element in his ambition for a strong South African dominion as the key to British military security in that part of the world. In evolving his version of a mandate, Smuts did not contemplate its application to the former German colonies, and certainly not to South West Africa, except as a last resort if these territories could not be secured in any other way. 4. In the event, South Africa had reluctantly to accept the position that annexation of South West Africa was out of the question and that she must be content with a special type of mandate over the territory, under which South West Africa would be administered under the laws - and as an integral part - of South Africa. 5. A paper by Dr Mondlane examined and compared the mandate and trusteeship systems. The mandates system was created after the First World War primarily as a means of disposing of former German and Turkish colonies among the victorious states, in such a way that substantial control was secured over these territories without recourse to outright annexation. The inhabitants of the territories mandated were not consulted, and no provision was made by which they might invoke the protection of the League of Nations. When, at a later time, a procedure was introduced for the presentation of petitions to the Permanent Mandates Commission, it was stipulated that petitions from the inhabitants of mandated territories must be transmitted through the mandatory power. The trusteeship system, established by Charter of the United Nations and 320

THE CONFERENCE FINDINGS intended to embrace finally all colonial territories, was more flexible than the mandates system, in that a particular trusteeship agreement was to be made in respect of each territory. Self-government or independence is the defined goal of the system, and more specific and effective international control is provided for. 6. This trusteeship system represents a definite advance over the mandates system, but it has not prevented attempts to incorporate trust territories under the guise of the provision of self-government. THE CRISIS FOR THE INTERNATIONAL COMMUNITY 7. The Commission was in agreement that the papers summarized above established that, while some progress in international morality was demonstrated by the emergence of the mandate system in place of earlier unbridled annexation of conquered territory, and next by the replacement of the mandates system by that of trusteeship, it is clear that systems of international control of these types cannot be regarded as acceptable or just substitutes for independence. 8. In 1921 the principle of international responsibility for the wellbeing of the inhabitants of South West Africa was accepted by the world community. The depressed condition of the majority of the South West African people and the assumption of international responsibility for the territory created a strong moral obligation, binding the nations of the world, to make effective provision for the welfare of the people of South West Africa. To this moral obligation was added a clear legal obligation created by the mandates system. The passage of time and the continued oppression of the people of South West Africa by the Republic of South Africa have given urgency to the fulfilment of the moral obligation through effective political action by the nations of the world. The legal obligation remains unenforced, in defiance of world opinion and of international justice. The Commission is convinced that the South African Government has violated the mandate and that it has imposed upon that country the pernicious and racialist policy of apartheid. It is exploiting South West Africa as a colony. It has virtually incorporated the territory into the Republic. Its administration of South West Africa has been selfish and oppressive; the Government of South Africa has surpressed the legitimate demands of the people of South West Africa for political and human rights; instead, it has

THE CONFERENCE FINDINGS frustrated the aspirations of the African people for independence; it has established military bases in that country and embarked upon measures that constitute a serious threat to the integrity of neighbouring African States. For the past 20 years it has persistently defied numerous resolutions of the United Nations; it has refused to accept the three advisory opinions of the International Court of Justice concerning its accountability to the organized body of the international community, the United Nations. 9. The Government of South Africa, through these acts, has not only displayed contempt for the international community. Its continued administration of South West Africa in defiance of world opinion, and its refusal to participate in orderly arrangements for achieving the independence of the country, have nullified attempts to reach a peaceful settlement of the question. The militarization of the Caprivi Strip constitutes a military provocation and a serious threat to international peace. 10. Conditions in South West Africa constitute a severe crisis for the international community. On the resolution of this crisis depends also the peace of a large portion of Africa. If the international community should prove unable to arrive at an equitable solution for the people of South West Africa, the future viability of the United Nations may be affected. 11. In the interest of the oppressed people of South West Africa and of the preservation of international peace and order, urgent action is essential to secure the immediate termination of South Africa's control and administration of South West Africa and the full independence of that country. In view of the failure of the United Nations to achieve this object through the passage of successive resolutions in the Security Council and the General Assembly, the Security Council in particular must be called upon to exercise its powers under Chapter 7 of the United Nations to terminate South Africa's oppressive rule and restore the people of South West Africa to freedom. All States must be prepared to take action to achieve these objectives. 12. The Commission believes that the solutions to the problems of South West Africa will be political. The impending decision of the International Court of Justice in the actions brought against the Republic by Liberia and Ethiopia may also provide an occasion for

THE CONFERENCE FINDINGS action to achieve a political solution under Article 94(2) of the Charter of the United Nations. The Commission calls for vigilance on the part of all States to ensure that a judgement of the International Court of Justice against South Africa is complied with by the South African Government with promptness and without evasion, and for effective joint action to ensure enforcement of such a judgement if South Africa fails or refuses to comply. It recommends that upon the delivery of judgement by the International Court of Justice, the Security Council should immediately take effective measures to secure and control compliance with the judgement by the South African Government and to prevent recourse by that Government to devices for the evasion or frustration of the Court's decision. A judgement against South Africa provides a reason, quite independent of chapter VII, for action terminating South Africa's mandate and revoking any further rights of South Africa to exercise control and administration in South West Africa. 13. The people of South West Africa have suffered long and grievously under grossly oppressive systems of colonial administration. The attempt to subject the colonial power to a measure of control by means of the mandates system has completely failed and has demonstrated that there can be no substitute for sovereign independence. The people of South West Africa have the right to freedom in their own country in complete independence of foreign rule. The world community is under an urgent and compelling duty to bring to an end the tyrannical rule under which they now live. REPORT OF COMMISSION 4: THE ASSERTION OF INTERNATIONAL RESPONSIBILITY 1. The South West African question has become a crucial test of and challenge to - the principle of international commitment and responsibility. The role of the United Nations system in preserving peace and security depends on an adequate international response. This question is a burning issue not only for Africa but also for the world community. It has aggravated relations between states and continues to be a source of tension and racial strife and threatens the peace of the world. 2. For twenty years the world community through the United

THE CONFERENCE FINDINGS Nations has sought by negotiations and persuasion to reach a just solution to the South West African question. It has consistently urged the South African Government to abandon its racial and exploitive policies in the Mandated Territory of South West Africa, to satisfy the provisions of the League of Nations Mandate: 'To promote to the utmost the material and moral wellbeing and social progress of the inhabitants of the Territory'. The International Court of Justice has repeatedly reaffirmed in advisory opinions that South Africa's obligations to the international community have not lapsed with the end of the League, and therefore that South Africa possesses no right unilaterally to alter the status of South West Africa. The South African Government has not only ignored these international efforts but has intensified its policies of apartheid and race rule over the South West African people. In defiance of its obligations under the Mandate, it has ceased to report on this administration over the mandated territory and has denied to the indigenous population the right of petition. It has systematically suppressed their legitimate aspirations for freedom and self-determination, and in its determination to colonize and consolidate its conquest of South West Africa it has cynically violated the most elementary human rights. 3. South Africa's actions have created a crisis which has grave implications for the peace and security of the African continent. These actions, and the armed forces that have been created to buttress them, are not only an extreme manifestation of colonialism but create a centre of white supremacy and reaction whose aim is to challenge and frustrate the historical and irreversible movement of liberation and progress that has been and is taking place in the African continent. Herein lies the serious threat of war and conflict. 4. These developments are sufficient grounds for urgent action by the international community through the UN to terminate the mandate, taking immediate steps to assist the South West African people in achieving their legitimate objectives of freedom and national independence. The Commission warmly associates itself with the struggles of the national liberation movements for these goals. While the nations of the world retain their responsibility to assert their rights under international treaties and commitments in relation to the South West African question, the Commission

THE CONFERENCE FINDINGS affirms that the destiny of the Territory must ultimately remain in the hands of the South West African people. 5. The international struggle to terminate the mandate acquires fresh importance and urgency as a result of the case before the International Court of Justice. The Commission is of the opinion that the proceedings may give rise to an additional opportunity for mounting international action to achieve the termination of the mandate and an independent South West Africa. THE POLITICAL CASE FOR ACTION 6. The Commission's task was to examine the ways in which international responsibility for the mandated Territory of South West Africa may be asserted in the light of the conviction that South Africa has, by its policies and actions, wilfully violated its obligations under a mandatory system which is itself outmoded. This conviction arises especially from the experience of South Africa's behaviour towards its international obligations and the UN. All efforts at peaceful negotiations with the South African Government have proved abortive. Every attempt at persuasion has been rejected. The South African authorities have shown determination to strengthen their territorial conquest over South West Africa by encouraging white immigrants and extending their repugnant racial policies of apartheid over the indigenous population. The Commission therefore concludes that no useful purpose can be served by pursuing further negotiations with the South African Government. To secure the prompt termination of the mandate, the Commission believes that other measures will have to be taken. 7. Adequate measures for the enforcement of an international decision to terminate the mandate are readily available to the world community. The International Conference on Economic Sanctions against South Africa, held at London in April 1964, basing itself on numerous expert studies, concluded that total economic sanctions against the South African regime could be effective in enforcing the will of the international community, providing that they are collective, international and mandatory. 8. Further, the termination of the mandate must be secured by the organization of an international presence acceptable to the people of 325

THE CONFERENCE FINDINGS South West Africa, preparatory to the establishment of an independent Government of South West Africa. Such an international presence would require adequate military and security forces. 9. These courses of action can undoubtedly secure the termination of the mandate. But the Commission is mindful that international policies recommended here are dependent on the attitudes of the Great Powers and their agreement to enforce, through mandatory action, the termination of the Mandate. The Commission recognizes that the Governments of the United States and the United Kingdom, which are the key countries, as well as France, which also possesses a veto in the Security Council, have so far not committed themselves to this course. Through trade, investments and in other ways, influential interests in the countries which are South Africa's major trading partners have encouraged the defiant behaviour of the South African Government, allowing it to believe that the nations and peoples of the world lack the will and authority to assert their international responsibilities. The Commission condemns all acts which have encouraged the South African Government to pursue its present policies. It calls upon the nations of the world, in particular the major trading partners of South Africa, to take urgent action to disabuse the South African Government of its dangerous miscalculations and to adopt policies which will not only implement the numerous resolutions of the UN General Assembly and Security Council, but which will decisively contribute to the termination of the South African Mandate over South West Africa. 10. While recognizing that there already exists a legal, political and moral basis for action by the United Nations, the Commission is of the opinion that a judgement of the International Court of Justice against South Africa would provide an additional ground for international action to terminate the South African Mandate over South West Africa and compel South Africa to withdraw from the territory. Failure by South Africa to comply with a compulsory judgement would constitute a serious threat to the peace and must, in the nature of the enforcement powers vested in the Security Council under Article 94(2) of the Charter, set in train a strategy for international action encompassing the measures recommended by the Commission in paragraphs 7 and 8. 326

THE CONFERENCE FINDINGS ACTION TO ACHIEVE CHANGES IN INTERNATIONAL POLICY 11. The predominant problem facing the international community is to secure such changes in the policies of South Africa's major trading partners as would enable the Security Council to act decisively in terminating the mandate. In the Commission's view, an international campaign should be waged at all levels to educate and win the support of world opinion. In such a campaign, emphasis must be placed on securing the support of the American and British peoples. 12. The Commission holds that such a campaign should embrace all international, national and regional organizations; it believes the role of political parties, trade unions, religious, student and youth organizations is crucial in creating the pressures required for changes in Government policy. The Commission appeals to all such organizations for action to attain these objectives. 13. The Commission took particular note of the important contributions made by the great majority of states in the international struggle against South Africa. It is of the opinion that these states possess a continuing responsibility to exert their influence on the great powers with a view to achieving the termination of the mandate. Further, in an effort to advance this aim, the Commission calls upon these Governments to consider effective measures for securing the withdrawal of trade and investment facilities to those international and foreign enterprises which possess and are developing an economic stake in South West Africa. The Commission, expressing its solidarity with the South West African people's legitimate struggle for self-determination, urges the international community to actively support the liberatory movement in South West Africa. 14. The Commission also calls upon these governments to commit themselves to contribute to the economic and social development of an independent South West Africa. A WORLD CRISIS 15. With every delay, the South African regime not only intensifies its rule of apartheid over the people of South West Africa but also deprives them of their wealth and their capacity to develop into an

THE CONFERENCE FINDINGS independent viable nation. The tightening of the grip of the apartheid system will only inflame and provoke the nations of Africa and create the conditions of a disastrous race war. A specially pressing reason for immediate action is the continuing military build-up within South Africa. 16. The Commission underlines the fact that the inability of the UN to solve the South West African problem could, if allowed to continue, severely damage the world body as an effective political instrument in support of international peace and security. Such inaction would erode respect for the United Nations and the International Court of Justice. It would dangerously undermine the confidence of peoples all over the world in the principles of international authority and commitment. To delay is to fail.

6. Postscript The International Court Decides? by lain MacGibbon The proceedings of the International Conference on South West Africa recorded in the earlier chapters of this book were conducted with one potentially significant factor in the situation still unresolved. More concern was expressed about the relevance than about the outcome of the cases brought by Ethiopia and Liberia in which they asked the International Court of Justice to condemn major aspects of South Africa's administration of the Territory of South West Africa as violations of the Mandate. 1° On 18 July 1966 the Court handed down what may prove to be its most controversial judgement ever, holding that it was unable to give a decision on the merits of the dispute because Ethiopia and Liberia had no legal right or interest in the subject matter of their complaints. By reaching this arid conclusion the Court signally failed to dispel widespread doubts about the relevance of its role in the settlement of critical international disputes; and at the same time it tragically deepened anxiety about the prospects of bringing this particular dispute to a just conclusion in the context of the international rule of law.

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? The purpose of this chapter is to indicate the contents of the Judgement and the main criticisms which may be levelled against it from the standpoint of international law; to explain the narrowness of the decision; to assess its legal effect; and to point to some of its important implications with regard both to the Court itself and to the ultimate settlement of the South West Africa dispute. THE JUDGEMENT: AN APPRAISAL The proceedings were instituted by Applications filed by Ethiopia and Liberia on 4 November 1960. The two actions were joined by an Order of the Court on 20 May 1961. The Respondent, the Government of South Africa, filed preliminary objections to the jurisdiction on 30 November 1961. The Applicants nominated an ad hoc Judge, as did the Respondent. Oral argument occupied some sixteen days during October 1962. In its Judgement in the first phase of this case the Court rejected the four preliminary objections lodged by South Africa and decided that 'it has jurisdiction to adjudicate upon the merits of the dispute', thereby substantially holding inter alia that, despite the dissolution of the League of Nations, the Mandate for South West Africa is a 'treaty or convention in force' within the meaning of Article 37 of the Statute of the Court, that Ethiopia and Liberia had locus standi under Article 7(2) of the Mandate to invoke the jurisdiction of the Court, and that the dispute between the Applicants and the Respondent was within the category envisaged by the same provision of the Mandate. With these admittedly formidable legal hurdles cleared - albeit by the narrow margin of 8 votes to 7 - the way now seemed open to a definitive judgement on the merits of the dispute. Following the 1962 Judgement, South Africa filed an Il- volume Counte-r MemonraiTff Applicants their Reply. and South Africa a 2- volume Rejoinder, supplemented by other documentary material, including the Odendaal Report of 557 foolscap printed pages. From mid-March 1965, 99 public sittings of the Court were devoted to oral hearings which included the arguments of Agents and Counsel for both parties and the testimony of 14 witnesses. The record was voluminous and the Court's private deliberations on the fully argued merits occupied some six months. The expenditure involved in these proceedings has been variously but conservatively estimated at hundreds of thousands of pounds. The massive amount of time, effort, skill and 330

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? money expended did no more than reflect the magnitude of the issues at stake. Yet, when all was said and done, the millions of words of evidence and pleading directed to the central question of whether South African administration of the Territory and inhabitants of South West Africa was or was not in conformity with the Mandatory's obligations under the Mandate were swept aside without comment by the laconic pronouncement that 'the Court finds that the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claims, and that, accordingly, the Court must decline to give effect to them'. The decision was reached by the casting vote of the President, the votes being evenly divided seven-seven. It was greeted by the vast majority of those who followed the tortuous course of the proceedings, lawyer and layman alike, with bewilderment bordering on incredulity. Shock and resentment quickly found growing expression -in a welter of derogatory comment from almost every part of the '-, globe. It was variously described as incredible, regrettable, a gross betrayal of the people of South West Africa, destructive of confidence in international law as an effective means of achieving international justice7ian atrocious miscarriage of justice, instrumental of fobbing Africans of their dignity behind the mantle of legal technicalities, the most unfortunate and manifestly unjust pronouncement ever made by the International Court in favour of South Africa, a slap in the face for the world, and an abdication of responsibility. Strong language was not confined to African spokesmen or to nonlawyers. An 'abortion of the judicial process' was the pungent choice of words of the Agent for the Applicants. And in an unusually vigorous phrase for a Judge - even for a dissenting one - Judge Jessup of the United States tersely castigated the Judgement as 'completely unfounded in law'. Decisions of this Court are bound to attract the closest attention, not only because the Court is the highest international judicial authority, but because of its intrinsic importance as an influence for good or ill on the process of international legal development. When the question before the Court is one which Judge Padilla Nervo of Mexico characterized in his rasping dissent as 'the most explosive international issue of the post-war world', added urgency is given to the task of scrutiny. The burden of objective appraisal is made acute

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? when the Court splits as evenly as it did in this case. Against this, however, must be set the consideration that the very magnitude of the gulf between the Judges arms the critic with a considerable measure of confidence, encouraged by the knowledge that almost every conceivable criticism will find support in the dissenting opinions. So it proves in this case. The material for radical criticism exists in abundance; and the cogency of the views expressed by the dissenting Judges discredits at every essential point the reasoning on which the Court's decision is based. The value of dissent was underlined by Judge Jessup when he cited with approval, as the late Judge Sir Hersch Lauterpacht had done before him, the words of Charles Evans Hughes: 'A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day'. Fortunately, the voice of dissent in this case was loud enough to generate hope that it may soon provide the guidelines to extricate the Court from the new procedural dilemma in which the decision has placed it. Analysis of the decision is best confined to some of the features of the Judgement which appear to stand in most need of explanation. For the most trenchant and sustained criticism of all, one need go no further than the dissenting opinions. There is much common ground in them; and the points at which they depart from the findings of the Court are meticulously documented and convincingly reasoned. What caused most surprise was without doubt the refusal of the Court to make any pronouncement at all on the merits of the dispute. Certainly there would have been widespread, indeed withering, denunciation of a finding substantially against the Applicants, but it would have been on a narrower and straighter basis. The reasons which the Court chose to adopt for its rejection of the Applicants' claims proved in the event to be totally unexpected. General opinion was confounded primarily because of the strangely limited effect which the Court was prepared to concede to the Judgement of 1962. In every crucial respect the 1966 Judgement in effect reversethe r, iviou--ar-dO W,,ision. It did so on a theory not put forward by the Respondent in its final submissions, and for reasons which do not withstand examination, as each of the dissenting Judges makes clear. It will be recalled that in order to reach its conclusion that it had 'jurisdiction to adjudicate upon the merits of the dispute' the Court in 1962 dismissed the preliminary objections filed by South Africa. 332

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? The question of legal title or interest on which the whole 1966 Judgement turned was specifically considered and decided in connexion with the Respondent's Third Preliminary Objection. On this question the Court stated in 1962 that the 'manifest scope and purport' of Article 7 of the Mandate 'indicate that the Members of the League were understood to have a legal right or interest in the observance by the Mandatory of its obligations both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its Members'; and it added: 'Protection of the material interests of the Members or their nationals is of course included within its compass, but the well-being and development of the inhabitants of the Mandated Territory are not less important'. Judge Koretsky of the Soviet Union put briefly a conclusion shared by all of the dissenting Judges: 'So the question of the Applicants' interests in their claims was decided as, one might say, it should have been decided, by the Court in 1962.' One device employed by the Court to enable it to circumvent the apparent intention of the Court in 1962 was to give the preliminary question of legal right or interest the novel description of a 'matter that appertained to the merits of the case but which had an antecedent character, namely the question of the Applicants' standing in the present phase of the proceedings, - not, that is to say, of their standing before the Court itself, which was the subject of the Court's decision in 1962, but the question as a matter of the merits of the case, of their legal right or interest regarding the subject-matter of their claim'. From this opaque language the Court, basing itself on what it termed 'a universal and necessary, but yet almost elementary principle of procedural law', drew a stultifying distinction of surpassing finess 'between, on the one hand, the right to activate a court and the right of the court to examine the merits of the claim, - and, on the other, the plaintiff party's legal right in respect of the subject-matter of that which it claims, which would have to be established to the satisfaction of the Court.' To give a right to invoke the jurisdiction and then to deny any answer, even an adverse one, is to empty the right of all meaningful content. Judge Jessup acidly demolished the assertion underlying the Judgement 'that even though - as the Court decided in 1962 - the Applicants had locus standi to institute the actions in this case, this does not mean that they have the legal interest which would entitle them to a judgement on the merits' with this comment: 'No authority 333

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? is produced in support of this assertion which suggests a procedure of utter futility.' He went on to ask rhetorically: 'Why would the Court tolerate a situation in which the parties would be put to great trouble and expense to explore all the details of the'i'i[ts, and only thereafter be told that the Court would pay no heed to all their arguments and evidence because the case was dismissed on a preliminary ground which precluded any investigation of the merits?' The interpretation of Article 7(2) of the Mandate, the vital jurisdictional- or, as Judge' Wellington Koo significantly termed it, adjudication - clause, was another issue which found judicial opinion completely divided. The Court read this provision in a way which excluded the judicial accountability of the Mandatory to any other individual Member of the League of Nations in major matters arising from what it called the 'conduct' provisions of the Mandate, while limiting it to minor questions arising out of what it termed the 'special interests' provisions of the Mandate, noting that 'the dispute between the Parties relates exclusively to the former of these two categories of provisions, and not to the latter'; and it was thus led, according to its view of the Mandates system as a whole, to confine its search for control mechanisms to secure the performance of the sacred trust in every important aspect of the Mandatory's administration to the institutional processes of the League under the Covenant. The distinction emphasized by the Court between the 'conduct' and the 'special interests' provisions of the Mandate appears to be wholly arbitrary and incapable of bearing the weight of the decisive consequences which the Court draws from it. It is impossible to reconcile with the wording of Article 7(2) of the Mandate which Judge Koretsky noted was 'quite clear to anyone who is not seeking to read into it what it does not contain'. And further it runs directly counter to the emphatic words of the 1962 Judgement, where the Court said of Article 7(2): 'The language used is broad, clear and precise: it gives rise to no ambiguity and it permits of no exception. It refers to any dispute whatever relating not to any one particular provision, or provisions, but to 'the provisions' of the Mandate, obviously meaning all or any provisions, whether they relate to substantive obligations of the Mandatory toward the inhabitants of the Territory or toward the other Members of the League or to its obligation to submit to supervision by the League under Article 6 or to protection under Article 7 itself.'

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? Confining itself to the 'conduct' provisions, the Court denied the possibility of any legal tie between a Mandatory and an individual Member of the League. The part which an individual Member State could play in the administrative process was limited to its participation in the invigilatory activities of the organs through which alone the League, according to Article 2 of the Covenant, was entitled to function. While drawing attention to the voting rules under which the Mandatory 'possessed a vote necessary to the taking of any formal Council decision on a question of substance relative to its mandate * . . so that, in the last resort, the assent, or non- dissent, of the mandatory had to be negotiated', and which could prevent the Council taking any decision against what a Mandatory conceived to be its interest, the Court at the same time rejected the only way out of such an impasse, namely a system of judicial protection at the instance of an individual Member State. It remained convinced that 'those who intended the one system cannot simultaneously have intended the other'. Yet, as the dissenting Judges stressed, the former system egregiously lacked the vital element of security for the performance of the sacred trust which the latter alone provided. Unlike the Court, the dissenting Judges did not accept the view that the framers of the Mandates system had been cynical or short-sighted enough to leave the protection of mandated territories in the last resort at the mercy of the self-interest of the mandatories. A final point made with particular force by Judges Koretsky and Jessup relates to the nature of the claims which Ethiopia and Liberia made in their final submissions, and may do much to expose the error of the Court's insistence on a search for some legal right or interest possessed by the Applicants above and beyond the right which they had under the 1962 Judgment to invoke the Court's jurisdiction. Throughout the 1966 Judgment the Court persisted in denying that a jurisdictional clause could confer any substantive right on a party, and that what the Applicants were asking the Court to concede was inter alia their substantive right to require the performance of the 'conduct' provisions of the Mandate. This would be tantamount to admitting that the Applicants, as individual Member States of the League, possessed the invigilatory rights and control powers with regard to the 'conduct' provisions which the Court had been at pains to refute. Judge Koretsky pointed out that, although the jurisdictional 335

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? clause of the Mandate gave the Applicants 'the right to apply to the Court on questions relating to the interpretation or the application of all provisions of the Mandate . . . this does not mean that the Applicants could be considered as some kind of individual control organ.' They were merely 'endowed with a right, one may say, of judicial initiative within the limits defined by Article 7(2).' The real interest of the Applicants was to exercise this judicial initiative, and they had asserted from the outset their 'legal interest to seeing to it through judicial process that the sacred trust of civilization created by the Mandate is not violated'. The confusion caused by the attempt, in cases involving the interpretation or application of a Mandate, to differentiate between the right to invoke the jurisdiction and the substantive right underlying the claims which may be made is uncommonly difficult to disentangle. Of the dissenting Judges who tried to do so, none is clearer or more persuasive than Judge Koretsky. He observed towards the end of his dissent that it was 'practically impossible' to make that differentiation, 'as in these cases the substantive right of the Applicants, their legal right or interest, in the subject matter of the claims, one may say, coincides with their right to submit to the Court their dispute relating to the interpretation or the application of the provision'. From a rather different angle, Judge Jessup clarified matters in a way which demonstated that the Court had misinterpreted the nature of the claims which the Applicants had made throughout. Echoing Judge Koretsky's words, he noted that the 'Applicants have not asked for an award of damages or for any other material amend for their own individual benefit. They have in effect, and in part, asked for a declaratory judgment interpreting certain provisions of the Mandate'. After drawing attention to a significant passage from the Separate Opinion of Judge Sir Gerald Fitzmaurice of the United Kingdom in the Northern Cameroons case of 1963, Judge Jessup summarized in a single paragraph a line of argument which reaches the heart of the matter. Article 7(2) of the Mandate, in his view, 'gave a Member of the League the right to submit to the Court a dispute relating to the interpretation of the provisions of the Mandate if the dispute cannot be settled by negotiation'. Even the present Judgment did not purport to reverse the findings of the 1962 Judgment that Ethiopia and Liberia came within the qualifying category of Members of the POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? League, and that the present case involved a dispute which cannot be settled by negotiation. 'I do not understand,' he continued, 'that it is denied that the dispute refers to the interpretation of provisions of the Mandate. I do not see how this clear picture can be clouded by describing the claims as demands for the performance or enforcement of obligations owed by the Respondent to the Applicants. The submissions may indeed involve that element also . . . but this element does not exclude the concurrent requests for the interpretation of the Mandate'. COMPOSITION OF THE COURT The full complement of Judges on the International Court of Justice at the Hague is 15. To the Bench, Ethiopia and Liberia (jointly) and South Africa each added, as they were entitled to do, a Judge ad hoc. Yet the Court which delivered its Judgement in the South West Africa cases was a Court of fourteen. The three missing Judges were Judge Badawi of the United Arab Republic who had died in the summer of 1965, Judge Bustamente y Rivero of Peru who was prevented by illness from sitting, and Judge Sir Muhammad Zafrulla Khan of who withdrew (involuntarily, it appears) in view of the opinion of 'a large majority' of his fellow judges that it would be improper for him to sit - apparently, as he himself explained, because he had at one time been nominated as Judge ad hoc by the Applicant States, although he at no time sat in that capacity. It can be said with some confidence that, when account is taken of the previous voting records and opinions of the absent three, the presence of any one of them would have preserved the continuity of voting of the 1962 Judgement and the decision clearly adumbrated there on the vexed question of legal right or interest, and thereby precipitated a completely different outcome, including a decision on the merits of the dispute as generally anticipated. Whatever the majority, and however it is reached or composed, provided there is a majority, then its opinion constitutes the Judgement of the Court. Judge Jessup was at pains to stress this at the very beginning of his dissent in these words: 'In my view, whenever the Court renders judgement in accordance with its Statute, the judgement is the judgement of the Court and not merely a bundle of opinions of individual judges. This is equally true when, in accordance with Article 55 of the Statute, the judgement results from the casting vote 337

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? of the President. I do not consider it justifiable or proper to disparage opinions or judgments of the Court by stressing the size of the majority.' Notwithstanding acceptance of this entirely proper view, it remains both legitimate and necessary - for the future international standing of the Court itself, if for no other reason - to stress that the majority which handed down the recent decision (criticized above not on the ground of the majority involved, but with regard to its intrinsic legal features) was an artificial majority and was obtained only as the result of a remarkable concatenation of wholly fortuitous circumstances - death, disease and disqualification - which are highly unlikely to recur. The decision in this case, and the methods by which it was attained, have already produced calls for reappraisal of the Court's procedure and for reform of its composition. The decisive importance of the President's casting vote in this case, justified though its exercise was under the Statute of the Court, will lead to scrutiny of this institution. Whether paragraph 2 of Article 55 can be excised from the Statute of the Court will depend on finding a way of guaranteeing that no Judgement or Advisory Opinion is ever handed down by a Court of even number. While it may be feasible to ensure that the Court which begins the hearing of a case contains an odd number of Judges it will obviously be a matter of some difficulty to find a formula which ensures an odd number at the time judgement is delivered, given the suddenness with which any member of the Court could be prevented at the last moment by illness or other emergency from carrying to a conclusion his judicial function. Even more difficult to achieve may prove the desires, already expressed, to have a better, or at least differently, balanced Court from the point of view of geography or national legal attitudes (which may not coincide). Unless the method of election is changed, the composition of the Court is the outcome of separate elections by all parties to the Statute of the Court in the General Assembly and by the Security Council; and the electors in these bodies are already obliged by Article 9 of the Statute to 'bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured'. A separate question is raised by suggestions that the number of Judges should be increased to take 338

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? account of the vast increase in United Nations membership since 1945, as has already been done in the Security Council and in the Economic and Social Council. The same considerations which led to an increase in these two organs may not necessarily be applicable with regard to the principal judicial organ of the United Nations, but no doubt the matter will be thoroughly canvassed. IMPLICATIONS OF THE JUDGEMENT The reasons behind the widespread reaction of profound disappointment at the Court's refusal to pronounce on the merits of the dispute go deeper than mere disagreement with the Court's restrictive view of the applicable law. They stem from a vivid appreciation of the invaluable part which a judicial decision in contentious proceedings might have played in the largely political process of ending a situation which for nearly twenty years has engendered constant international friction, tended to disturb international peace and security, and offended the moral and legal conscience of most of mankind. What was lost by the failure to obtain a clear-cut judgement against South Africa should not be minimized. Nor should the exaggerated view be countenanced that all was lost. Much may yet be salvaged from the wreckage of hopes and illusions attributable to the decision. It is important to be clear about one central feature of the decision which has given rise to headlined misunderstandings, sedulously fostered by the South African Government and its sympathizers. What the Court did not decide is in danger of being submerged beneath the rising tide of recrimination from one side and jubilation from the other. Judge Jessup considered it worthwhile to list a number of issues - which are still highly relevant to any process of political settlement - which the Court did not determine. Starting with the proposition that the Judgement 'does not constitute a final binding judicial decision on the real merits of the controversy', he noted that the Court has not decided, as South Africa had submitted, that the Mandate had lapsed on the dissolution of the League of Nations and that South Africa is consequently no longer subject to any legal obligations thereunder. Parenthetically, it may be observed that a finding that the Mandate had lapsed might well have had an unexpected effect in simplifying the issues concerned with revocation of the Mandate (discussed below), inasmuch as South Africa appears to have no source other than the Mandate from which to derive its

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? right to continue to administer the Territory of South West Africa and its inhabitants. Further Judge Jessup pointed out that the Court has not decided, as South Africa had submitted in the alternative, that the Mandatory's obligations to report, to account and to submit to supervision have lapsed. Nor has the Court 'rendered a decision contrary to the fundamental legal conclusions embodied in its Advisory Opinion of 1950 supplemented by its Advisory Opinions of 1955 and 1956 and substantially reaffirmed in its Judgement of 1962'. The final point in this short catalogue of issues which the Court did not determine sets in a property limited perspective the extent of the victory acclaimed by South Africa. Judge Jessup phrased it thus: 'Even more important is the fact that the Court has not decided that the Applicants are in error in asserting that the Mandatory, the Republic of South Africa, has violated its obligations as stated in the Mandate and in Article 22 of the Covenant of the League of Nations. In other words, the charges by the Applicants of breaches of the sacred trust which the Mandate imposed on South Africa are not judicially refuted or rejected by the Court's decision.' If the present legal position were not as indicated above, the chances of approval of political action in a United Nations context would be reduced to the vanishing point. That those chances are not now a great deal stronger may be ascribed, at least, in part, to the absence of a final binding decision against South Africa. Such a decision would have opened a direct route to the Security Council, providing it with an opportunity - and one which could be presented to it in any other way, if at all, only on the optimistic assumption that existing political obstacles will disappear - to take a decision, binding on all Member States of the United Nations, to enforce full South African compliance with the judgement and with its obligations as Mandatory. The persistent and underlying difficulty about invoking the full range of sanctions against South Africa under Chapter VII of the Charter has been that such action - whether it be 'measures not involving the use of armed force' (Article 41) or 'action by air, sea, or land forces' (Article 42) - must be preceded by an express or implied determination by the Security Council that the situation constitutes a 'threat to the peace, breach of the peace, or act of aggression' within the meaning of Article 39. A finding of that nature requires the affirmative votes of 9 of the 15 members of the Security 340

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? Council, including the concurring votes of the Permanent Members. The unwillingness of a number of the Permanent Members to support such a finding in a situation involving South Africa is notorious, as is the difficulty of gauging the type of situation which could be deemed likely to bring about a change of attitude. Examples of international friction where there has been admitted to exist a tendency to disturb international peace and security have not proved the required catalyst in the past. It is precisely because the compliance procedure envisaged by Article 94(2) of the Charter empowers the Security Council to decide on measures which are unlimited in their range (provided they are directed to enforce compliance with the judgment in question), and because it does not depend on a prior determination that there exists a threat to, or breach of, the peace, or act of aggression, that the existence of a judgement against South Africa might have proved the one missing factor calculated to induce a change of attitude among the Permanent Members of the Security Council. The Court's decision closes the one straightforward way which would have had the additional advantage of facing squarely the more intransigent western powers in the Security Council with a painful choice between either supporting effective enforcement measures against South Africa or making the infinitely damaging admission that they preferred the expedient path of continuing to enjoy economic benefits of trade with and investment in South Africa to the principled course of upholding the rule of law in international affairs and the authority of the Court - precepts which they have done most to fashion and to commend to others, and whose abandonment would bear disastrous implications and constitute a standing and monumental reproach to the States concerned. However, other effective ways forward remain open and should be pursued with the utmost vigour for the sake of the future well-being of the inhabitants of South West Africa whose interests remain paramount and engage the responsibility of every State on every continent. One obvious course of action may be implied from the whole underlying thrust of the recent Judgement. One effect of the decision is to disqualify from invoking judicial protection for the Territory and its inhabitants against South African administration with regard to the major obligations under the Mandate any individual State or States basing their right or interest to do so on former Membership

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? of the League of Nations. The original Principal and Allied Powers fall equally under this disqualification. Throughout the Judgement it was maintained that the only proper method of ensuring the observance by the Mandatory of the obligations to report, to account and to submit to supervision, and of safeguarding the interests of the Territory and its inhabitants, was through the appropriate organs of the League of Nations. Institutional action alone, it was insisted, constituted the securities for the performance of the sacred trust. It will be recalled that the Advisory Opinion of 1950 still holds good and was not reversed by the recent decision, and that the Court in that Opinion found that South Africa was under the obligation to submit to the supervision of the General Assembly of the United Nations in place of the Council of the League. The General Assembly might well accept the Court's invitation to take what steps it can to provide securities for the performance of the sacred trust. Among the limited range of options open to the General Assembly is one which would put any subsequent political action on the firmest and most authoritative legal basis possible, short of a judgement in a contentious case, which is now ruled out. The suggestion was made by Judge Sir Muhammad Zafrulla Khan that the General Assembly (or the Security Council) should obtain from the International Court of Justice what Ethiopia and Liberia failed to elicit, namely a finding which clarifies the legal position beyond argument and demonstrates the serious extent and long-standing nature of South African violations of its obligations as Mandatory. As explained above, some form of undeniably authoritative legal finding would seem to be an essential element in enlisting the support of those States which have so far proved reluctant to apply effective pressure against South Africa where there has been the faintest shadow of doubt concerning the legal position. At the earliest opportunity, therefore, the General Assembly should explore the remaining judicial avenue by requesting an Advisory Opinion from the Court on the central issue of whether, and if so to what extent, South Africa has been and is in violation of its obligations under the Mandate for South West Africa. There is little doubt that such an approach involves the serious political difficulty of counselling further restraint by African and other States whose patience through some seventeen years of politically still-born legal proceedings on this very issue has been as surprising as it has been commendable. It would be remarkable if that patience were not already at or near the point of exhaustion. Among 342

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? the tragic effects of the recent Judgement was that it served to deepen the suspicion with which many new States regard international law and the Court charged with its application; and it provoked an outburst of expressions of determination on the part of a number of disillusioned representatives that in no circumstances would resort to the Court be contemplated. On the other hand a number of factors point to the likelihood that further recourse to the Court could be undertaken in the confidence expectation that a decisive finding against South Africa will emerge. These may outweigh the reluctance of African and other States to temporize further. The advantage of holding their hand meantime would be to strengthen it later. The extraordinary mishaps which turned the majority of 1962 into the minority of 1966 are scarcely to be imagined as likely to be repeated. Again, elections are to be held during the present session of the General Assembly to fill five vacancies on the Court caused by the expiry on 5 February 1967 of the terms of office of the following Judges: Sir Percy Spender of Australia, Wellington Koo of China, Bohdan Winiarski of Poland, Jean Spiropoulos of Greece, and Fouad Ammoun of Lebanon (who is completing the unexpired portion of the late Judge Badawi's term). The electors in the General Assembly and the Security Council are not likely to forget that three of these Judges voted for the recent Judgement. In short, from 6 February 1967 the composition of the Court will have radically altered. It should also be emphasized that there need be no repetition of the protracted proceedings in the last case. After more than three and a half years of written and oral argument, all that can be said on the main issues has been said and is in the Court's possession. There appears to be no reason why an Opinion could not be handed down within a matter of months of the request; and the General Assembly would be within its rights in pressing for an answer as a matter of urgency. At least two uses could be made of an Advisory Opinion clearly adverse to South Africa. It could be used to substantiate a demand that South Africa comply forthwith with its obligations under the Mandate, including its duty to 'promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory'. The General Assembly would be entitled to call on all Member States to assist in ensuring South African compliance with its 343 ---- "-" r" t J"

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? obligations by means of whatever diplomatic and economic pressure it seemed best suited to that end. Although such a call would have the force only of a recommendation to States, and would not oblige them to assist, the obligation on South Africa subsists because it is derived not from the General Assembly recommendation, nor from the Advisory Opinion (which lacks the binding force of a Judgement), but from the Mandate. It is doubtful whether the Security Council could also properly take a decision binding all Member States to afford the assistance necessary to ensure that the outcome of the Court's Opinion is respected. Its competence to do so would derive fiom its position as the organ endowed by the Charter with the power to execute decisions of the Court, and an Opinion in these circumstances is so closely assimilated to a decision that the difference should carry minimum weight. It is believed, however, that orthodox doctrine would limit the power of the Security Council in these circumstances to the making of recommendations. The alternative use which might be made of an Advisory Opinion is one which many would prefer - including spokesmen for the peoples of South West Africa, for obvious reasons - and that is to substantiate a demand that South Africa be deprived of the Mandate for South West Africa. Although such a demand might properly be made at any time after the Court has clearly established the abuse of trust, it would seem preferable to reserve this until South Africa's failure to comply with the first demand has been demonstrated. Recent developments suggest that the waiting period would be short. No procedure for depriving a Mandatory of a Mandate was provided either in the League Covenant or in any of the Mandates, presumably on the assumption that no Mandatory would so betray its trust as to call for such an eventuality. Following the earlier Advisory Opinions of the Court, the General Assembly is the obvious competent body, as the successor in this matter to the League Council, to effect this revocation. In resolving to terminate the Mandate, the General Assembly would at the same time call on South Africa to cease forthwith its occupation and administration of the territory. The remaining problems are those of the appropriate responses to likely South African refusal to make the necessary adjustments and terminate its administration, and these problems have been present

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? and have prevented effective action for some twenty years. They persist whether an Advisory Opinion against South Africa is handed down or not. The usual Charter machinery is available to bring diplomatic and economic pressure to bear on South Africa. How effective such voluntary or limited sanctions may prove is doubtful. To achieve maximum effectiveness, a way must be found of presenting to the Security Council considerations which might induce it to characterize the situation as a threat to, or breach of the peace, or an act of aggression within the meaning of Article 39, thus opening the way for the Security Council to invoke the whole range of enforcement measures under Chapter VII of the Charter. The operative terms are not defined, and certainly not restrictively defined, in Article 39. The determination of whether those situations exist is ultimately a political decision for the Council itself. One possible line of argument would be that South African's continued illegal occupation of the territory - contrary, that is, to the legal position established by the Court or asserted by the General Assembly - properly falls within the terms of Article 39. A further argument might be adopted if action by the General Assembly to implement a decision to revoke the Mandate and replace the South African administration were met by armed resistance, or a threat of such, on the part of South Africa. In that event, it would be reasonable to resort by way of analogy to the decision in the Corfu Channel case of 1949. The Court there accepted the legality of action by one State involving the use of force to affirm a right of passage in the face of anticipated unlawful attempts by a coastal State to prevent the exercise of that right. Professor Sir Humphrey Waldock has warned that the scope of this ruling must not be exaggerated, adding: 'It is not the enjoyment of every right possessed by a state under international law that may be affirmed by force; it is the exercise of a right, and it is only exceptionally that a state is entitled, either by treaty or by custom, to exercise a right in or through another state's territory.' Although the analogy with the Corfu Channel case is not exact, it seems not unreasonable to postulate that the exercise by the organized international community of its right to ensure the protection of a mandated territory and its inhabitants, through a forceful affirmation thereof in the face of threats, if need be, should be no more - and probably less - open to criticism than action by a single State. And the emphatic insistence of the Judgement in the Corfu Channel case that respect for territorial 345

POSTSCRIPT: THE INTERNATIONAL COURT DECIDES? sovereignty is an essential rule loses much of its force when it is appreciated that South Africa does not enjoy sovereignty over South West Africa but rather rights of administration which are conditional on the fulfilment of its obligations as a Mandatory. Finally, it should not distress international lawyers overmuch if the elasticity of the provisions of the Charter should be tested to the utmost in an attempt to bring to an end what for too long has been an intolerable state of affairs in which South Africa has openly flouted the wishes and the law of mankind. There should be little sympathy, least of all from lawyers, for a State which has grossly abused 'a sacred trust of civilization'. And the open and contemptuous violator of a trust should be afforded no protection by the legal system which created it and whose only weakness was perhaps that it was too trusting. 346

Index Administration: Odendaal proposals, 228-32 organization of, 120-1 transfer to Pretoria, 120-1 African National Congress, 183 Agriculture, 131, 132, 141, 146, 156, 158 labour, 130-1, 191 legislation, 123-4 Long Term Agricul. Comm., 123 Odendaal Commission on, 238-41 subsistence production, 142 AME Church, 202 American Metal Climax, 140 American Metal Company Ltd, 140 Apartheid policy, 107-8, 110, 113, 128-9, 223, 229, 232-3 condemnation of, 16-18 effects on SWA economy, 29, 91, 128-9, 140-9, 164 Angola, 21, 26, 152, 225, 244, 286 strategic significance, 254, 257-8 Angola Boers, 94-5, 98, 184 Angra Pequena, see Luderitz Bay Annexation, see Incorporation Anti-Slavery and Aborigines Protection Society, 65 Arms traffic, 92 Augustineum, 204, 213-16 passim Balfour, Lord, 81 Banks, 160 Bantu Education Act (1953), 200 Bantustans, see Land Basters, see Rehobothers Basutoland, 104, 167, 169 Bechuanaland, 104, 152, 244, 247, 254, 258-9 administration of Caprivi strip from, 253 Bergdama, 36, 115, 181, 224, 240-1 Birthrate, 36 Bondelswart Nama, 36, 39, 88, 91, 100n., 183, 190 Botha, General Louis, 59, 60, 79 Bushmen, 184, 223-4 Cameroons, 54, 70, 78, 283-4 Capital investment, 138 Capital formation, 135-6, 158-9 Caprivi Strip, 130, 162, 225, 241 administration of, 253, 255 military build-up, 242, 245, 248, 250 UN comment on, 253-5 Caradon, Lord, 264 Cattle farming, 141, 156 branding of cattle, 89 tribal cattle ownership, 38, 39 Census, see Population Centlivres, Judge A. van der Sandt, 112 Chiefs and Chieftainship, 39-40, 113, 116, 119, 124, 190 Christian National Education, 197 Coal, 137, 156 Coloured population, 105, 116, 167, 176, 198, 204, 223, 225, 236, 237 education of, 208 Communications, 153-4 Congo, 14 Congo Reform Association, 56 Conradie, Administrator, 96, 97 Consolidated Diamond Mines of SWA Ltd, 139 Constitution, 118-20 Copper, 131, 138-9, 140 exports of, 157 wasting asset, 29 Contract labour, see Labour Corfu Channel case, 295; see also International Court of Justice Cunene River, 94, 152, 245 power scheme on, 176, 177, 257 Curzon, Lord, 64 Customs Union, 156 Currency, 160 Damara, see Bergdama De Beers Consolidated Mines Ltd, 139 Diego Garcia naval centre, 262-3 Dove, Dr Carl, 184 Diamond mining, 121,131,138-9, 176 exports, 157 wasting asset, 29 Discrimination, 36, 105, 108, 121, 151 in economics, 142-9 in education, 169-70, 196-9, 204-8 in health services, 232-5 in incomes, 175 in land, 170-1, 226-8 in law, 127 in living standards, 142 347

INDEX Discrimination-cont. in military training, 142-9 in social services, 236-8 as cause of German-Herero war, 39 Drought, 124, 130, 132 Dutch Reformed Church, 197 Economic Commission for Africa, 147 Economic development: affected by apartheid, 129, 141-9, 164-5, 238-41 capital formation, 135-6, 158-9, 160 capital investment, 138, 141 dependence on exports, 144 dualism, 130, 145-9 gross domestic product, 133, 144 gross national income, 133, 144 marketing, 158 post-war expansion, 132-3 public expenditure, 160-4, 172-3, 235-6 rate of growth, 133, 142 trade, 136-7, 138, 140-1, 154-8 Exports and imports, 135, 137, 144, 154, 156, 176 Education administered by South Africa, 195, 201,210 and apartheid, 169-70, 194-5, 197, 209, 210, 216-18 community, 200, 201, 202, 208 Eiselen Commission, 197-200 expenditure, 173-4, 201, 208 language instruction, 202, 208 and missions, 198, 208-9 Odendaal Commission, 196, 203, 207, 208-10 race differentials, 198-9, 203, 204 school population, 168-9, 195,204-6 in South Africa, 197-8, 202 statutes, 127 student-teacher ratio, 198, 219 student-teacher relations, 216 syllabus, 202, 203, 214, 218 teacher discipline, 220-1 teacher training, 195, 204, 209, 215; see also Augustineum university standard, 207 for Whites, 195, 208 Eiselen, Dr W. M., 197 Ethiopia, 16, 294, 329, 330 Expenses Opinion, 303; see also International Court of Justice Exports, see Foreign Trade Extra-Territorial and Northern Natives Control Proclamation (1935), 192 Farming, 41-44, 47-51, 146-7 by Whites, 121-2, 147, 170, 182, 227 Finnish Mission Society, 195 202, 204 348 Fishing industry, 131, 132, 140, 157, 176, 191 Fitzmaurice, Sir Gerald, 295-6, 336 Forced labour, 126, 148-9 see also pass system see also labour, contract and recruited Foreign investment, 20-1, 141, 144-5, 158 Foreign trade, 137-41, 144, 154-8 Fredericks, Chief Joseph, 179 German East Africa, 60-1, 69-70 see also Tanganyika German occupation of SWA: .colonial atrocities', 56-7, 66-7 Colonial Department, 37-8, 40 corporal punishment, 49 decrees, 42 diamond mining, 51 Herero-German war, 35, 55 causes, 39, 180-1 extermination policy, 40-1, 178, 181 consequences, 35-7, 41, 189 labour policies, 36-7, 42, 50, 58 land confiscations, 36, 121-2, 179180, 181-2 and missions, 38, 40-1, 42, 45, 195 population, 50, 59, 181 prison camps, 36, 41 reserves, 37, 50, 181-2 settler-colonial administration conflict, 47 settler policies, 38, 41, 42-3 strategy of the military, 39-41 trading, 39, 179 white farms, 182 white population under, 50, 181 Germany, Federal Republic of, 137,140 Ghana, 30, 168, 283 Gladstone, Lord, 55 Gobabis, 152 Government expenditure, 160-4, 172173,235-6 Gray, Alan, 260-1 Grey, Sir Edward, 55, 56 Grootfontein, 250, 257 Gross, Hon. Ernest A., 175, 207 Great Britain: and apartheid, 17, 19 and German colonies, 55-67 investment in SWA, 21 Labour Party, 64 and sanctions, 264 strategic interests, 262-4 trade with South Africa, 264 trade with SWA, 137, 140, 141, 157, 264 Gutteridge, William, 260 INDEX Hancock, W. K., 83n. Harcourt, Lewis, 58 Harris, John H., 65 Health services, 167-8 and Odendaal Commission, 233-5 Herero, 36, 39, 48, 50, 55, 115, 122, 179-82, 224-5 German-Herero war, 35-42, 45-6 United Nations petitions, 15, 185, 224-5 Herero Chiefs Council, 29, 181 Herson, Dr Francis, 261 Hertzog, General J. B. M., 94 Hobson, J. A., quoted, 80 Holland, 103 Homelands, see Land Immigration, white, 141-5, 225-6 under German occupation, 180-1 under the mandate, 181-2 Imports, see Foreign trade Income per capita, 130, 142- 3, 147-8, 175 Incorporation, 55, 73, 81, 99, 104, 269 advocated by Smuts, 69, 73 rejected by United Nations, 185 International Conference on Sanctions against South Africa (1964), 26, 259 International Court of Justice: Advisory opinions, 16, 288, 344 Compulsory Judgement, 16 Composition of the Court, 337-9 Ethiopian-Liberian initiative, 16, 24 Corfu Channel Case, 295, 297, 345 dissenting judgement, 331, 332, 333, 336-7, 339-42 passim documentary evidence, 330 elections to fill vacancies, 343 enforcement of decisions, 293 evidence on military preparations, 249-53 expenditure on SWA case, 330 Expenses Opinion, 303 Failure to comply with decisions, 289 legal effects of a Judgement, 290 Monetary Gold Case, 296 public sessions, 330 reaction to Judgement, 331 and Security Council, 344 Testimony on education, 200, 204, 207 unilateral action, 293-4 1962 Judgement, 332 Itsawisis, 186 Jessup, Judge, 331, 332, 333, 336, 337, 339-42 passim Johnson, Christopher, 263 Johnson, Prof. D. H. N., quoted, 27 Judgement, see International Court of Justice Kahimemua, Chief, 180 Kaiser Wilhelm II, 40, 41, 55 Kalahari desert, 73, 129, 258 Kandjou, Festus, 181 Kaokaoveld, 115, 130, 168, 171, 186, 206, 245 and education, 206 Kapuuo, Chief Clement, 30, 115 Karakul, 141 Katanga, 257 Katima Mulilo, 245, 250, 254 Kaukunga, S. S., 116 Kaunda, Kenneth, 254-5 Kavihunua, Chief Nikodemus, 180 Keetmanshoop, 257 Khan, Judge Sir M. Z., 337, 342 Koo, Judge Wellington, 334, 343 Kooper, Rev. Marcus, 187 Koretsky, Judge, 333, 334, 335-6 Kozonguizi, 187, 215 Krause, Judge F. E. T., 111 Krogh, D.C. on brewing and fishing industry, 191 on capital formation, 135-6, 158-9 on per capita income, 174-5 on subsistence production, 142 on trade, 137-8, 155 Kruger, S. J. Paul, 55 Kutako, Chief Hosea, 15, 29, 115, 187 Labour: contracted labour, 190-1, 192-3 control, 114, 125, 148, 184, 190, 192-3 under German occupation, 36-7, 43-4, 47-9, 50, 89-90m legislation, 125-6, 146-7, 192 recruitment, 84-90, 92-3, 114, 126, 131,146-8, 190-2, 193 shortage, 44, 91, 92-3, 148 see also Pass Laws Land, 37-8, 93, 114, 118, 122, 146-7 'Bantustan' policy, 23, 107-8 Commission into reserves, 93 Distribution to population groups, 121, 123-4, 146-7, 170-1 expenditure on, 173-4, 177 Odendaal Commission recommendations, 170-1, 226-8,229-32, 277 under German occupation, 37-8, 181-2, 226-8 Reserves proclaimed 1921, 183 to 1947, 186 Reserves: Aminuis, 89, 95-8, 204 Aukeigas, 187 Gobabis, 180 349

INDEX Land-cont. Hoachanas, 187 Soromas, 186 Tswanaland, 241 Waterberg East, 115, 186, 204 see also Ovamboland Okavango Caprivi Kaokaoveld White settlement, 121-2, 147, 170, 182-3, 189 Lauterpacht Sir Hersch, 289, 332 Lawrie, G., 150, 227, 241n. League of Nations, 14, 15, 54, 69, 72, 73, 75, 76, 270 on annexation, 269-70 Covenant (article 22), 79 ineffectiveness, 15, 271-2 jurisdiction and sovereignty, 81-2 Mandate system: C Mandates, 79-80, 82-3 classification, 270-2, 276-7 conception, 268-9 as a compromise, 269-70 comparison between Mandates and Trusteeship, 276-80 Smuts on mandates, 72-9 South African press view, 80-1 weaknesses, 271-2 Wilson on, 75-9 Permanent Mandates Commission, 87-90, 272-5 Annual Reports, 91, 99, 271-3 on Bondelswarts' rising, 190 on Caprivi Strip, 254 on labour policies, 91-3 on military bases, 244, 246 on South Africa, 87, 88-100 Legislation, 110, 116, 118, 119, 120, 123, 124, 192 discrimination, 127 labour, 192 see also individual entries Legislative Assembly, 93, 109, 119, 228-32 Leutwein, 37, 39, 40, 181, 189 Lewin, Professor J., quoted, 230-1 Liberia, 16, 175, 294, 329, 330 Lloyd George, David: on British war aims, 65-6, 73 on German colonies, 74 on SWA annexation, 75-8 Liquor laws, 88, 91 Local Government, 124 Odendaal Commission, 228-32 London Missionary Society, 195 Longterm Agricultural Policy Commission (1948), 123 Luderitz Bay, 131, 152, 179, 257 Lugard, Lord, 90 350 Manufacturing industry, 131, 137, 143 Mbanderu, 224 MacDonald, Ramsay, 64 McLaughlin, Comdt G. M., 251 Maherero, Chief Samuel, 36, 40, 44, 179, 180, 185 Mandate, see League of Nations Maritz, Col. S. G., 58 Marshall, General S. L. A., 249-53 Milner, Lord, 64, 81-2 Military training, 116-17 Minerals, 123, 138-40 Mines, Works and Minerals Ordinance (1954), 123 Mining, 129, 131, 132, 134, 138-40 labour conditions in, 90, 190-2 regulations, 123 wasting asset, 143-4 Minimum Areas of Farms Commission (1946), 240 Mining Companies, 20,21,13940, 185 Missions and Missionaries: Catholic, 204 and education, 92, 195,201,209, 213 Finnish Missions, 195, 202, 204 during German occupation, 38, 40, 42, 45, 89 London Missionary Society, 195 Rhenish mission, 38, 41,42, 185,218 and social services, 223, 233, 235 Wesleyan Methodists, 195 see also Rhenish Missions, Finnish Mission Society Morel, E. D., 56, 64 Mozambique, 26, 27, 258, 286 Mpacha air base, 254 Myrdal, Alva, 19 Nama, 36, 115, 171, 181, 224 education, 202 see also Bondelswart Nama Namib desert, 129 Native Administration Act (1954), 123 Native Administration Proclamation (1922), 118, 192 (1928), 110, 119, 124 Natives Urban Areas Proclamation (1951), 192 Nervo, Judge Padilla, 331 Newmont Mining Corporation, 140 New South West Africa Native Labour Assocs. (Nuwe SWANLA), 191 Nujoma, Sam, 32, 245, 250 Odendaal Commission Report, 23, 134-5, 141, 166 on Bantustans, 170-1,226-8,238-41 on Caprivi Strip, 253 on Development Plan, 175-6 on economy' 133-5, 142-4

INDEX Odendaal-cont. on education, 23, 29, 168-70, 196, 203, 208-10 on export markets, 156 financial recommendations, 161-2 foreign earnings, 144 gross domestic product, 132, 135 health services, 167-8 in ICJ proceedings, 330 legislative, 228-33 per capita income, 142-3 public expenditure, 172, 235-6 social services, 236-7 South African contribution, 162-4 Terms of reference, 222-3 United Nations comment on, 175-7 Okahandja, 180, 185, 204 Okavango, 115, 130, 152, 168, 206, 225228 Okavango swamp, 258 Ondongua, 250 Orumbo, 183-4 Ovamboland, 36, 50, 89, 115, 116, 130, 181, 182, 225, 227, 235, 241 Bantustans, 171, 241 canal construction, 176, 245-6 education, 204, 206, 235 labour, 50, 116 medical services, 168 taxes, 235-6 Pass laws, 89, 114, 125-6, 146-9, 190, 192-3; see also labour Peace Conference (Paris), 55, 69, 72, 73, 74, 75, 78, 81, 82 Pensions, 236; see also Social Services Permanent Mandates Commission, see League of Nations Police expenditure, 160 functions, 90 strength in SWA, 247 Police Zone, 89, 116, 121, 125, 130, 190, 225 economic development in, 141-2 extension of, 147 Population, 59, 130 223-6, 226-8 African population 1921, 190 1960 Census, 130 Portugal, 70-1, 88, 257-8, 281, 284, 285 Prison labour, 90, 92 Race conflict, 22, 113-14, 116-17 Railways, 152-3, 160, 163, 236-7 Rainfall, 129, 147, 227 Rautenbach, Dr Caspar, 207 Rehebothers, 36, 115, 116, 121, 171, 182, 225, 237 education, 169, 203, 208 pass law exemption, 190 property rights, 123 Reserves, see Land Rhenish Mission, 38, 41, 42, 185, 218 Rhodesia, 14, 21, 26, 64, 244, 254, 265 sanctions against, 27-8 Rivero, Judge Bustamente y, 337 Rohrbach, Paul, quoted, 43, 180 Rosenne, Dr, 290, 293, 297, 304n., 305n. Ruacana (power station), 177 Ruanda-Urundi, 284 Rumpff, J., Ill Rust, Konrad, quoted, 43, 47 Sanctions, 26-8, 242, 259-65 Schachter, Dr, 294, 306n. Scott, the Reverend Michael, 15 Sharpeville, 16, 243 Simonstown, 250, 262, 263, 264 Smuts, Field- Marshal J. C., 60, 61, 62, 64, 89 on British policy for Africa, 69-73 on German colonial aims, 67-8 on Incorporation, 69, 73, 75 on League of Nations jurisdiction, 81-2 on mandate system, 73-9 passim on Peace Conference aims, 69-72 Social Services, 229 financing of, 235-6 apartheid policy in, 236-41 South Africa: administration from Pretoria, 109 administrative record, 24 annexation hopes, 14, 55, 66, 74-5 apartheid policies applied to SWA, 20, 93, 128-9 colonialism, 14, 20, 104-5, 116-7,168 conquest of SWA, 59-60 customs union with SWA, 156 defence budget, 242-4 designated mandatory power, 80 immigration from, 15, 20 intransigent policies, 23-5 investment in fishing industry, 141 investment in SWA, 20-1 joint marketing with SWA, 158 mandatory policies compared with German occupation, 89-90 mandate responsibilities, 15, 16, 23 military build-up, 244-54 military build-up in SWA, 230-5 record as mandatory power, 87-101 relations with Portugal, 87-8, 257 repressive policies in SWA, 105-6, 115-16 strategic interests, 233-9 trade with SWA, 137 and United Nations, 16, 22, 23, 186187, 288-9 South African Bantu Trust Fund, 235 INDEX South African Journal of Economics, 175 SWA Affairs Amendment Act (1949), 120 SWA Coloured Organization, 116 SWA Constitution Act (1925), 118, 119 SWA Native Affairs Administration Act (1954), 120 SWANLIF, 115 South West African National Union, see SWANU South West African Peoples' organization, see SWAPO Spender, Sir Percy, 343 Spriopoulous, Judge Jean, 343 Stature of Westminster, 82 Swakopmund, 59, 244 SWANU, 30, 115 SWA Teachers Association, 202 SWAPO, 31, 32, 115, 245 Tabata, I., 211n., 217 Tanganyika, 16, 54, 168, 258, 284 see also German East Africa Tariffs, railways, 153-4 see also Customs Union Taxes, 89, 91, 92, 97, 161, 173, 190, 229, 235-6 Territorial Development and Reserve Fund, 172-3 Tjerije, Erastus, 187 Togoland, 54, 70, 78, 283 Trade statistics, 136-7 Trade Unions, 126 Transkei, 187 Trusteeship: comparison between mandates and trusteeship, 276-80 goals, 281-4 sources, 267-8 see also United Nations Trusteeship Council: annual reports, 279-80 visiting missions, 279-80 Tsumeb, 131, 140, 185, 190, 218, 220 Tsumeb Corporation, 139-40, 176, 190 United Nations, 15, 16, 17-19, 28-9 on apartheid, 17-19 arms embargo, 242 Charter, 14, 26, 276-7, 282, 285,290, 296, 297 Commission on the Racial Situation in SA, 17 Committee on Non-Self-Governing Territories, 284 Committee on South West Africa, 110, 244-9, 253-4, 284 Expert Committee on Sanctions against South Africa, 19, 27 Fourth Committee, 24 General Assembly, 17, 18, 302-4 Partition plan, 22 Sanctions, 26-8 Security Council, 19, 298, 299-302 South African view, 15 Special Ctte. on Colonialism, 21 on Odendaal Plan, 175-7 Special Training Programme, 221 Trusteeship Council, 238, 275-87 Urban areas, 115, 231-2 United States of America: attitude to trusteeship, 282 on apartheid, 17, 19 companies, 139-40 Pres. Wilson, 75-7, 78-9 rejection of annexation, 185 financial interests in SWA, 20-1 trade with SWA, 137, 140, 141, 157 USSR on trusteeship, 282-3 Vagrancy Proclamation (1920), 192 Van Zyl, Dr H., 200, 201, 204, 207 Vedder, Dr H. E., 115, 240-1 Verwoerd, Dr H. F., 13, 23, 261 Volks Organisasie van SWA, 116 Von Bilow, 40, 41 Von Lindequist, Governor, 36, 42, 46 Von Trotha, General, 40, 41, 178 Vorster, B. J., 23 Wages, 175, 192 Wagner, Dr Gunter, 36, 147, 224 Walvis Bay, 56, 58, 131, 140, 152, 153, 176, 191, 225, 230, 251-2, 256 Water resources, 152, 227 Watermeyer, C. H., 111 White settlers, 94, 225-6 education, 195 farms, 146-7, 170, 182, 227 land rights, 212 representation in SA Parliament, 120 Wilson, President Woodrow, 63, 72, 81, 99, 269, 287n. on German colonies, 74-5 on the mandatory principle, 75-9 Windhoek, 59, 95, 100, 109, 252, 257 military camp, 244, 246 Windhoek police shooting, 16 Windhoek Advertiser, quoted, 215, 252, 257-8, 258-9 Winiarski, Judge Bohdan, 343 Witbooi, Chief Hendrik, 45, 179 Wright, Prof. Quincy, 78, 100n. Zambia, 21, 243, 254-5

015