COMMISSION RECOMMENDS NEW REPRESSIVE LAWS
The first three volumes of the van Dyk Commission of Inquiry into Security Legislation in Namibia have been made public a year after it finished its work. The fourth volume, which contains the recommendations and a draft proclamation for a new law, has not been made available. From references in the first three volumes it is evident that the proposed omnibus law would perpetuate the repressive aspects of existing legislation, including the concept of 'guilty until proved innocent' in cases defined as 'terrorism'. (WA 6.10.86)
The Commission was established by the South African Administrator-General in Namibia on 12 September 1983 under the chairmanship of Justice Henk van Dyk of the Transvaal Supreme Court. It was empowered to 'inquire into and report on and make recommendations as to the adequacy, fairness and efficacy of legislation pertaining to the internal security of the...territory'. Its terms of reference were strongly criticised by the Council of Churches in Namibia and the Windhoek Bar Council, as it referred to a 'revolutionary onslaught' and a 'terrorist war'.
Despite their reservations, the Council of Churches and the Bar Council submitted detailed evidence to the Commission documenting atrocities carried out by the police and army, torture and the misuse of legal powers. The Bar Council called for a thorough overhaul of 'security' legislation, including the removal of the provisions in Proclamation AG9 allowing for indefinite detention without trial and the introduction of safeguards for detainees, such as their right of access to a lawyer. It also called for an investigation into the activities of the police and army in Namibia and criticised Section 103 (ter) of the South African Defence Act (No. 44 of 1957) which granted soldiers immunity from prosecution for any act carried out 'in good faith' in the war zones. (See FOCUS 54 pp.1,4)
The Commission also heard evidence from the International Committee of the Red Cross, requesting access to detainees, but this was not granted. The police, including the Security Branch and the South African Defence Force (SADF) presented arguments to the Commission for the strengthening of legislation. In particular they requested powers to extend the detention of individuals indefinitely without seeking the approval of a judge or an official of an executive authority. (WA 6.10.86; Star 7.10.86)
The police also argued for the removal of a provision of the Criminal Procedure Act which entitled accused individuals to copies of statements they had made after interrogation. The police said that these statements were used by SWAPO to train guerillas in the techniques of resisting interrogation and providing false information. (Nam 9.10.86)
DETENTION WITHOUT TRIAL
The Commission rejected calls for the abolition of detention without trial and revealed that although the Administrator-General was responsible for overseeing detentions, his office had not kept records of detainees. An attempt had been made to keep records during 1983, but this had been abandoned due to the failure of the police and army to submit up-to-date lists.
The Commission found that the SADF was unable even to provide a figure for the total number of people detained under Proclamation AG9, as local detentions were not always reported to sector headquarters. A figure of 2,883 detentions between 1977 and 1983 was provided, but the Commission accepted that the actual figure was higher than this. During the same period the Security Police said they had detained 2,624 people. Over ninety per cent of those detained by the police had not been charged with any offence, while not a single person detained by the army had been prosecuted. (WA 6.10.86)
Rejecting requests from the Bar Council, the Commission refused to examine the actions of the police or SADF or to conduct an investigation into the misapplication of security legislation. It concluded that although some of the legislation in Namibia contained provisions which could seriously infringe human rights, such measures were essential to counter the 'revolutionary onslaught'. After examining 23 items of legislation it proposed that existing legislation be replaced by an omnibus act. It also recommended that civilians should face prosecution for not providing information on the movement of guerillas in the war zones. The existing system of offering rewards for such information was not adequate, according to the Commission. (WA 6.10.86; Star 7.10.86)
In 1982 the Internal Security Act consolidated, rationalised and strengthened repressive legislation in South Africa following the recommendations of the Rabie Commission of Inquiry. The Van Dyk report points to a similar process occurring in Namibia, although the MPC administration has held back publication of its detailed proposals and has stated that it has not yet taken a decision 'one way or another' on its recommendations. (WA 7.10.86)
