THE LAWYERS' COMMITTEE SOUTHERN Gay McDougall, Director FOR CIVIL RIGHTS UNDER LAW A Special Report: • AFRICA Isabelle Gunning, Att'y 1400 'Eye' Street, N.W. ",PROJECT Mary Rayner, Int. Washington, D.C. 20005 Southern Africa (202) 371-1212 Edited By: Peggy Cox & Mary Rayner • January 1986 • Special Report No.4 Judge Nathaniel R. Jones Serves as International Legal Observer at South African Treason Trial of 16 United Democratic Front Members; Witnesses Impact of Emergency Rule Since 1979 the charge 0 f treason has become a significant observer on behalf ofthe Lawyers' Committee at the pre-trial weapon used by the South African authorities to criminalize proceedings held this past August, in connection with an ef­ the activities of its opponents. This year some 52 people are fort to dismiss the indictment for treason against the sixteen facing trial for high treason, among them many prominent defendants. The hearings were heard in the South African leaders of the opposition United Democratic Front (UDF). Supreme Court (Natal Provincial Division) in Pietermaritz­ The Lawyers' Committee has been closely involved in one of burg on August 5, 6, 7 and 12. these trials, State vs. Mewa Ramgobin & 15 Others, which Reprinted below are highlights from Judge Jones' report grew out of the protests surrounding the imposition of the to the Lawyers' Committee setting out the background and new discriminatory constitution in 1984. The trial and its context of the indictment; his observations of the trial pro­ potentially serious outcome for the defendants-treason is ceedings; and his visit to the eastern Cape where he witness­ a capital offense in South Africa-as well as its enormous ed the impact of the recent imposition of emergency rule. costs both personally and financially for all concerned, are Judge Jones presented his report in summary form to the indicative of the significance of this ideological weapon be­ United Nations Special Committee Against Apartheid on ing used to crush democratic opposition inside South Africa. October 15, 1985. Accordingly, the Lawyers' Committee invited the Honorable Judge Nathaniel R. Jones, of the United States Gay McDougall, Director Court of Appeals for the Sixth Circuit, to serve as a legal Southern Africa Project The Treason Charges theless, throughout the campaign, police repression was con­ stant. Activists were harassed and assaulted, pamphlets and peti­ Background tion forms were confiscated, and canvassers were arrested. "The accused are members ofone ofthe most important op­ UDF-sponsored meetings in a number of areas were banned, position groups in South Africa, the United Democratic Front and rallies were sometimes violently broken up by the police. (UDF), [and four of its affiliated organizations, the South On the election days themselves police used tear gas and batons African Allied Workers' Union (SAAWU), the Natal Indian against demonstrators as well as journalists covering the event. Congress (NIC), the Transvaal Indian Congress (TIC), and the "On August 21, the eve of the elections, the South African Release Mandela Committee (RMC)]. The UDF was organized Security Police arrested [eight] leading members ofthe UDF .... in 1983 to coordinate opposition to the new constitution intro­ "Other prominent members of the UDF were swept up in duced by the ruling white Nationalist Party. The proposed new police raids on February 19, 1985. The security police searched system ofgovernment gave limited participation rights to South the homes and offices ofUDF members and affiliates, and con­ Africa's Indian and Colored (mixed-race) population but con­ fiscated documents and records. Other arrests were carried out tinued to exclude from participation the 73 percent black ma­ later that month. By then eight more individuals had been jority. A continued white monopolization of power was charged with treason ...." guaranteed through the ethnically separate, tricameral parliamentary structure and through the nature of the new ex­ The Indictment ecutive presidency. "The indictment consisted of587 pages in three volumes. The "The UDF spearheaded a boycott of the tricameral parlia­ State alleged that the defendants had over the past four years mentary elections scheduled for August 22 and 28, 1984. The acted to further the aims of a number of banned organizations tactics employed by the UDF were peaceful and open. Never- (continued next page) The Lawyers' Committee for Civil Rights Under Law is a private tax-exempt non-profit organization dedicated to securing total acceptance of the concept that all Americans are entitled to equal rights under law and that lawyers carry out their responsibilities to help solve serious modern problems through processes of the law. The Committee was formed in 1963 at the request of the President of the United States. to "overthrow the State" and were accordingly guilty of high ted must have occurred under the same circumstances in order treason. The offense of high treason carries a possible death for joinder to be proper." penalty. As alternatives to the main count of common law "In another phase of the attack on the indictment, Mr. treason, the defendants were charged with a number ofstatutory Mahomed characterized the theory of the government as at­ offenses. Count 1 charged all sixteen of the accused with ter­ tempting to base a conspiracy merely on a similarity ofgoals and rorism. Count 2 charged several accused with participation in objectives of the United Democratic Front and of outlawed terrorist activities. Count 3 charged all the accused with the per­ organizations concerning the new Constitution. In challenging formance of acts calculated to further the objectives of the that position, Mr. Mahomed interjected the doctrine of "distinc­ unlawful organizations, the African National Congress (ANC) tiveness." He argued that merely because the UDF called for and the South African Communist Party (SACP). Count 4 goals that coincided with calls ofthe outlawed African National charged several accused with the performance ofacts calculated Congress, the Communist Party or the Committee to Free to achieve communism, and Count 5 charged several accused Mandela, does not, in and of itself, constitute a conspiracy be­ with the performance ofacts calculated to achieve the objectives tween those organizations or members thereof. It first must be of the ANC. shown that such an objective, cited as illegal, was a "distinc­ "The main charge oftreason concerns an alleged conspiracy tive" feature of the outlawed organization. He then went on to between the defendants and a number of banned organiza­ suggest that many organizations and individuals across a broad tions ... , [with t]he indictment alleg[ing] that the object of the spectrum share the objectives of urging an end to apartheid or conspiracy was to further the aims of an alleged organization, freeing Nelson Mandela. the "Revolutionary Alliance," formed between the banned "For three days Mr. Mahomed made his arguments against ANC and SACP, together with the South African Congress of the indictment and in support of the defendants' contention that Trade Unions (SACTU). The term "Revolutionary Alliance" the motion to dismiss should be granted. The defense team was coined by the State in the indictment. argued against the logic, reasoning, explanations and justifica­ "It should be emphasized that no organization called the tions advanced in each response made by the government in its "RevolutionaryAlliance" exists in South Africa. Nevertheless, filing. [However, not knowing what the state proposed to do the indictment is directed primarily to acts and purposes of this with the alternative counts, Mr. Mahomed could not formally non-existent group." rest defendants' case.] Court Proceedings "Following a six-day adjournment, the state argued in op­ "The hearing on the motion of the defendants to have the in­ position to the motion to dismiss the indictment. Basically, the dictment dismissed commenced on the morning of Monday, government insisted that the indictment and response suffici­ August 5, 1985, in the Supreme Court ofNatal Province before ently informed the defendants ofthe charges and met all require­ Justice [John] Milne. These proceedings consisted of oral ments. Further, the state asserted that it was to the advantage arguments by the defendants' legal team headed by Ismail ofthe defendants for the charges to be joined in a single indict­ Mahomed, one of two black Senior Advocates in South ment and tried together to protect them from a retrial in the Africa. .. This hearing, according to a number of legal event ofan acquittal. Ifthe charges were separated, some defen­ observers, had enormous significance because it afforded an op­ dants would face successive trials, according to the state." portunity for the defendants to test seriously the allegations in The Decision the 600-page indictment . "At the conclusion ofthe state's case, the court took the mat­ "Advocate Mohamed launched his attack on the indict- ter under advisement. ... On Monday, September 2, 1985, ment by outlining three primary objections: Justice Milne handed down his decision. • Misjoinder of the various defendants in the treason conspirary "Justice Milne found that the joinder ofall the accused in one count. indictment for treason was permissible. The practice of charg­ • Exceptability-uncertainty as to the offenses against which the ing a series of acts as one offense is well established in South defendants would have to defend, African law where