The sitting of a Commission of Inquiry established by the South African regime to probe Namibia's 'security laws' has given the Namibian Bar Council an opportunity to expose atrocities committed by the 'security forces'. The Bar Council has challenged the compliant character of the commission.
In a 51 page memorandum the council detailed an abuse of power so widespread and fundamental that 'the institutions of the rule of law such as the police, the courts, the legal practitioners, and the law itself are suspect in the eyes of the overwhelming majority of the people' (WA 24.5.84).
The Commission of Inquiry into Security Legislation in South West Africa was appointed in September 1983 following almost a year's campaigning by the Bar Council. Concern had grown due to the high number of detentions and increasing evidence of brutality by the army and police (FOCUS 45 p.9, 49 p.2).
From its inception, the Commission was criticised for its narrow scope and in particular for the preamble to its terms of reference which referred to 'the revolutionary onslaught on the territory of South West Africa and the terrorist war waged in certain parts of the said territory'. Within this context the Commission was charged to 'inquire into and to report on and make recommendations as to the adequacy, fairness and efficacy of legislation pertaining to the internal security of the said territory' (CT 13.9.83).
In spite of protests, notably from the Council of Churches in Namibia (CCN), the preamble was retained when the Commission was formally gazetted in November 1983. The Bar Council tempered its welcome for the Commission with a call that the application of the law as well as the legislation itself should be the subject of investigation. The CCN meanwhile condemned it as 'an insincere and manipulatory effort to further entrench existing security legislation'. Additional criticism came from Hans Rohr, leader of the Namibia Christian Democratic Party, who said that bearing in mind the Commission's terms of reference it would 'serve the aim of justifying and tightening the legislation rather than abolishing it, at the same time falsely creating the impression that the rule of law is to be restored in Namibia' (WA 16.9.83; WO 9.6.84).
Previous inquiries have lacked the independence necessary to thoroughly investigate allegations of brutality by the armed forces and to institute changes in policy. In August 1983 General Magnus Malan, the Minister of Defence referred to four investigations into allegations of atrocities against civilians claiming they showed that the allegations in general were greatly exaggerated (RDM 18.8.83).
Excessive censorship of all matters relating to security was one subject covered by the Bar Council's submission. The Commission itself is bound by stringent security measures under Proclamation AG118 of 1983. All employees of the Commission as well as anyone appointed to keep records of the proceedings are obliged to take an oath of secrecy. All evidence is to be given in camera unless the chairman rules otherwise. In addition, the Commission was given extraordinary powers to enter premises for the purposes of inspection or the seizure of documents. This was backed up by penalties of R200 to R1,000 or prison terms of between six and 12 months for those hindering or failing to comply with the rules of the Commission (WA 16.11.83).
The Commission's initial work received little publicity. However, in May the Namibian Bar Council gave evidence and requested that in camera restrictions be lifted. Press and public were allowed in while the chairman of the Bar Council spoke to the memorandum it had submitted. At a special press conference Judge van Dyk permitted publication of all but three portions of the report — those he said contained unproven allegations.
The Bar Council memorandum drew its evidence solely from court records. Amongst its main recommendations were a call for a major overhaul of all security legislation, an immediate investigation into the behaviour of the armed forces, in particular the special police unit Koevoet, and the abolition of the death sentence for all 'contraventions of security laws'. It focused on the growing power of the executive and armed forces at the expense of the judiciary. On the terms of reference it stated that 'many citizens in the divided society of SWA did not see their side as "terrorists" and neither did they see the security forces as their protectors'. Many people saw not an 'onslaught on the territory of SWA' but rather a resistance which included an 'armed struggle' against a 'foreign power' (WO 26.5.84).
The memorandum called for drastic amendment of Proclamation AG9 so that detention would only be allowed for the purpose of interrogation and not as at present to remove people from society for an indefinite period. Interrogation sometimes occurred only once if at all during a period of detention. Two women who were held for a month were never questioned on the grounds that the security police knew they would lie.
Evidence from the courts showed that it was impossible to safeguard detainees under the present regulations. Detainees should be permitted access to their families, their lawyers and to the Supreme Court. The Administrator-General was criticised for detaining people at the request of the security police without making an independent investigation. Court cases showed the horrific conditions under which detainees were held: confined to cells in which they could not stand, deprived of air and light, subjected to assault and torture; people disappeared from their homes without trace and police withheld information about them.
The Bar Council strongly criticised the situation where the power of the police exceeded that of the courts and the judicial officers.
Another section of security legislation which came under review was Section 103 (ter) of the South African Defence Act 44 of 1957 which grants immunity to members of the armed forces whenever their deeds are bona fide for the prevention or suppression of terrorism in any operational area. This clause has allowed soldiers to escape conviction for criminal deeds, as shown in the recent acquittal of two SADF members on a charge of armed robbery. Their trial also raised the question of how many cases never reached the courts because of the immunity and secrecy provided for in the Defence Act. In addition, it showed that SADF soldiers had access to uniforms of FAPLA, the Angolan armed forces, and PLAN, enabling them to commit crimes in the name of SWAPO (WO 26.5.84).
In particular the Council added its voice to those condemning the policing of Namibia (FOCUS 50 p.9). It charged the Commission not only to investigate instances of atrocities but to look at the training methods by which 'programmed killers' were produced. Evidence could be found in the recent trial of Koevoet members Paulus and Matheus and the earlier trial of a member of the police special task force for the cold-blooded shooting of a waiter in Windhoek. Recently a senior member of this unit was seen with the following slogan emblazoned across him: 'Killing is our business, business is good'. The Council contested the need for any police unit whose job was not to arrest suspects and bring them to trial but to shoot them.
The Minister of Law and Order was prompted to reply to the memorandum, making his second defence of Koevoet within two months. He called it an outstanding unit and ascribed responsibility for all atrocities to deserters (WO 2.5.84, 22.6.84).
In conclusion the Bar Council made the point that those few instances which came to court, and on which all its evidence was based, should not deceive people that the administration of justice was in a 'healthy' state. This could not be so while people disappeared without trace, were killed and buried without inquest, were murdered by persons unknown, were frightened to complain to the authorities or where wrong-doers were shielded from prosecution by the security legislation itself.
Judge van Dyk said the Commission expected to finish hearing evidence by the end of 1984 and should report by the middle of 1985. Amongst other groups submitting evidence have been the Council of Churches in Namibia, the International Committee of the Red Cross and the South West Africa Police which submitted eight volumes of evidence (CT 24.5.84).
