When the ANC stood up against torture
In 1983, when Nelson Mandela was in prison and his great friend and legal partner, Oliver Tambo, was leading the African National Congress in exile, I was summoned to the ANC headquarters in Zambia. On my arrival, Tambo told me they had a problem and he hoped that I, as a lawyer in the movement, could help find a solution.
The ANC, he said, had captured a number of people sent by Pretoria to infiltrate and destroy the organization, and now the ANC needed regulations on how such captives should be dealt with. I answered without hesitation that establishing rules for such circumstances would not be difficult, because there were clear-cut international standards, including a prohibition on the use of torture or cruel or inhumane punishment or treatment.
“We use torture,” Tambo told me soberly.
I could hardly believe it: The chief organization fighting for human rights in South Africa, a cause to which so many of us had dedicated our lives, was using torture.
It was not difficult to imagine the arguments advanced to explain the use of torture. It was only being used against traitors acting on behalf of the apartheid regime, its defenders would say, and that regime was doing everything in its power to wipe the ANC off the face of the world. That threat was not imagined but real; I am typing these words today with my left hand, having lost my right arm in 1988 when South African security agents planted a bomb in my car.
But the ANC was fighting a just struggle to create a democratic and nonracial society, and it needed to remain true to the principles it was fighting for.
Some of those in our revolutionary struggle thought otherwise: You couldn’t make a revolution, they reasoned, without breaking eggs. But Tambo clearly did not go along with these arguments. He wanted my help working on a code of conduct that would regulate the manner in which captives were treated, in keeping with the humane traditions of the ANC.
That is how I came to help draft the most important legal document I have produced in my 50 years of work as a lawyer. It amounted to a comprehensive code of criminal law and procedure for a liberation movement in exile. It established that all was not fair in love, war and the freedom struggle. Accusations against alleged agents had to be proved before properly constituted tribunals, with the right to make a defense being guaranteed.
Tambo could have simply decreed these changes as president of the organization. But that was not his way. The question of what standards of treatment should be applied raised deep moral and political questions that should be debated, in his view, by the whole organization.
Tambo was a democrat in his heart and soul, a great listener who insisted on speaking last to sum up the discussion rather than first to lay down the line. In his view, openness, debate and dialogue, especially of painful issues, could only strengthen the organization.
In that sense tolerance was more than just allowing different views to be expressed. It represented an active principle of taking critical ideas seriously and engaging meaningfully with them. It was not for him to make unilateral decisions on crucial policy questions, nor to appoint the leadership of the organization. And so he called a conference in the small town of Kabwe.
With Zambian troops surrounding the hall to protect us from possible commando raids by Pretoria hit squads, ANC members spent a full day discussing the ANC statutes and what should be included in the new code of conduct. It was my duty to present and explain the proposal. I was extremely anxious about how my proposals would be received, given the arguments in favor of torture in a war situation. It turned out that there was quick agreement on the general structure and values of the document. There was only one potentially contentious issue: Should so-called intensive methods of interrogation be permitted in emergency situations?
One by one delegates mounted the platform to say no, such tactics should never be allowed. One member said that if you gave the security forces any leeway at all, they would never stop there. Another declared in a quiet voice that we were fighting for life, how could we be against life?
It was one of the finest moments of my life. There were no headlines to be gained, no posts for which people were vying. We were simply reaffirming the soul of our struggle, the kind of people we were, what it was that bound us together. Unanimously we decided that no euphemism for torture or other cruel form of treatment would be accepted.
The consequences were far-reaching. A culture of honest inquiry and a willingness to entertain doubt opened the way for the organization to wholeheartedly support the notion of entrenching a bill of rights in a future democratic South Africa.
And Tambo’s message remains relevant today: He inspired us to be on guard not only against our enemies but against ourselves.
Albie Sachs was appointed by Nelson Mandela to be a justice on the Constitutional Court of South Africa in 1994. He retired last year. This piece is adapted from an address to the Capetown Press Club.