International condemnation of the banning of a court case seeking the release of 37 Kassinga detainees probably contributed to a decision, announced by the Administrator General, to release 54 of the 146 detainees held at a detention camp at Hardap Dam near Mariental.
The court case, initiated by prominent church leaders and relatives of detainees, was stopped by the South African State President on 27 April, a few days before the sixth anniversary of the Kassinga massacre.
In an unprecedented legal step, the South African State President ordered the South African Minister of Justice to issue a certificate rescinding the Namibian Supreme Court's jurisdiction to hear the case. The ban was imposed in terms of Section 103 ter (4) of the South African Defence Act No 44 of 1957, which provides indemnity for government officials and members of the security forces for any acts committed in an 'operational area'.
The Act also provides for the discontinuance of proceedings, instituted in any court of law against the state or any member of the South African defence forces 'if the State President is of the opinion ... that it is in the national interest that the proceedings shall not be continued'. No court has the power to review such an order, and the Minister is not required to give any reason for his action.
It is the first time in Namibian and South African legal history that the Defence Act has been used to impose a unilateral ban on a court action of this kind.
South Africa's unilateral action provoked strong protests from Namibian and South African legal circles as well as expressions of grave concern from Western governments, the media, and human rights organisations.
The Windhoek Bar Council described the action as 'contrary to the practices of any civilised legal system', while the General Bar Council of South Africa expressed its 'deep sense of concern and grave misgiving about this extraordinary use of executive powers'.
The American Lawyers Committee for Civil Rights under Law, which sponsored the court case, and whose representative was refused a visa to attend as an observer, called the banning 'outrageous'.
Diplomats of the Western Contact Group countries were reported to have expressed deep concern about the move, and the opposition Progressive Federal Party of South Africa was to raise the matter in the South African parliament. Helen Suzman of the PFP said the banning represented a 'vast abuse of ministerial power'.
On 2 May, the Administrator General announced that 54 of the detainees held at Mariental were to be released, claiming that the decision was reached as a result of an investigation launched in October 1983. Press reports, however, strongly speculated that the sudden announcement was the result of the international protests received over the banning of the court case.
According to the Administrator General, a security report had just been completed following investigation by the SWA Territory Force, and in view of its findings it was decided to release all those detainees who 'no longer pose a threat to law and order'. A total of 54 detainees presently qualified for the release, provided that members of their families could be traced and suitable accommodation be found for them.
The circumstances of the other detainees were being investigated with a view to their possible release.
While the announcement was welcomed in many quarters, the wider implications raised by the banning of the court case nevertheless give cause for concern. The ban effectively deprived the detainees of a public hearing and prevented details about the Hardap Dam detention camp, which has been shrouded in secrecy, from becoming known.
Lawyers also pointed to the serious implications of another section of the Defence Act, Section 103 Ter (8), which empowers the Minister of Justice to ban an inquest from taking place if a death was caused by the South African Defence Force in connection with the prevention or suppression of terrorism in any operational area.
A number of inquests held in Namibia in recent years have exposed the torture and assaults inflicted on detainees by the armed forces, resulting in at least three deaths in detention.
The release of 54 Kassinga detainees was announced by the Administrator General on 25 May. No names were disclosed, and it was not clear whether they included any of the 37 detainees involved in the court case.
Lawyers acting for the 37 decided to pursue the case despite the ban imposed by the Minister of Justice, on the grounds that the Minister did not have the authority to issue a certificate banning the case. The application for their release was due to be heard in the Windhoek Supreme Court on 28 May.
The case was raised in the South African parliament by an opposition party spokesman. He was prevented from discussing it fully by the Minister of Justice, who declared that the case was a security matter and needed to be cleared before any debate could continue.
