Appendix 7 South Africa, the transition to democracy and the banning of torture, by Denis Goldberg

My thanks to Professor Goerling for inviting me to present this paper to the conference on Torture and the Future. Torture has recently been often in the news because of the revelations of the use of torture by the United States in its so-called ‘war on terror.’ Security forces say there is no future without torture! Human rights activists say that with torture there is no future worth striving for because torture by security forces destroys the very society we wish to protect. Therefore we who believe in the development of society to protect the rights of every human being, have to care about putting an end to torture and the general atmosphere of social violence that goes with it. Turning now to South Africa:

I am happy to report that South Africa has become a democracy and we have, in our Constitution, banned torture. We brought an end to the apartheid dictatorship based on racism by law and the inherent violence and use of torture to maintain the system. Our democracy was officially born in 1994 when Nelson Mandela became President. We have just celebrated our fourth free democratic elections. The election results came out and there were few complaints. Despite a few minor incidents caused by undisciplined individuals, the elections went off peacefully.

Let me go back a bit to the past. I was arrested with others in 1963 and held under our infamous 90 days law (later 120 days) that allowed police to arrest people and hold them without contact with anyone except the security police for the purpose of providing information to the satisfaction of the head of police. The secrecy alone made this a ‘licence to torture.’

Was I tortured? I don’t know! It depends on the definition of torture. According to the Stanford University philosophers I was not tortured, merely put under psychological pressure. According to the UN Declaration I was tortured even though I was not physically beaten because the use of physical and psychological abuse with the intention of extracting information constitutes torture. It later appeared that there was to be a show trial, the famous Rivonia Trial, in which Nelson Mandela, Walter Sisulu, and other great leaders and I were convicted and sentenced to life imprisonment for conspiring to overthrow the apartheid state by armed force. Therefore I had to be unmarked when shown to the world. Nevertheless 90 days of solitary confinement with the possibility of it being repeated for eternity, as the Police Minister B J Vorster said, provided a certain pressure. To have my interrogator sit opposite me pointing his revolver at me and playing with the trigger provided even greater pressure. That is what the Stanford University philosophers say: it was just pressure to give up my personal freedom. I can report that I thought they would kill me and this was reinforced when they told me that I could safely speak about Looksmart Ngudle because he was dead. I accused them of murdering my comrade. They denied it, of course, but said they would be happy to hand me over to the interrogators who had dealt with him. The threat was clear.Then they threatened to arrest my wife under the 90 days law if I did not speak. (They had in fact already arrested her.) Knowing what they were capable of doing, was that pressure or torture? When they threatened her with the removal of our children and putting them in separate government institutions, was she pressured or tortured?

In my case they had made a fundamental error. They had seriously informed me that I would be charged with offences that carried the death penalty and they would ensure that I was hanged. Since I would die anyway, better to resist their torture, or was it merely pressure, and die with honour. In fact they removed me to an isolated prison where they expected me to be more vulnerable. However, I was able to engineer my escape. Though they recaptured me almost immediately and I got a few broken ribs in the process, they gave up on the interrogations. They pretended to be hurt because they thought I was ready to cooperate and I had tricked them, they said. They implied that I was a really naughty dishonest person! They had offered me money, new identification documents and help to settle anywhere in the world that I chose, in exchange for information about every person and place I had met or used in years of resistance to apartheid. They were offended when I rejected their offer as dishonourable, silly and futile. The words I used were not as polite as that, however.

As early as 1960, during the State of Emergency called by the apartheid government after the Sharpeville massacre, when thousands of political activists were arrested, torture was used against some of the detainees including some of the comrades I worked with. Johnny M-T, already more than 60 years old was forced to stand for days and nights on end until he was delirious. He was not allowed to use a toilet. He appeared at the doorway of the courtyard of the prison while we were on parade. He looked awful: unshaved, grey with exhaustion, and his clothes yellow with urine from above his waist downwards. But more, he looked ashamed to be seen in such a state. I suspect too that he had been compelled to say more than he intended. My response was simply to defiantly break ranks and go to him and embrace him. He needed support and comfort and above all acceptance. I took him to the shower bath and saw to it that he was cleaned up and dressed in spare clothes that I fortunately had with me. The guards knew they could not easily stop me doing what had to be done and I demanded a bucket and hot water so that I could wash his clothes. Bernard who was released after being tortured left the country. Stephanie’s ankle was broken when her interrogator applied more pressure than he should have. In the end the state paid her compensation for the physical assault. These are just a few cases known to me personally.

After the commencement of our armed struggle in which I too was involved and as the resistance heightened in the 1970s and 1980s, we know that many were tortured to death. We know that many were physically tortured and would never recover their health. We know that many were psychologically tortured and would never become fully functional again. I have already mentioned Looksmart Ngudle, the first to be murdered under the new laws. Steve Bantu Biko’s case is notorious. A white newspaper editor, Donald Woods, broke the story and was himself hounded out of the country by violence and murder attempts on him and his children. The case was notable for the role that the police doctors played. They covered up the seriousness of his condition and then signed a death certificate saying that he had died of natural causes when in fact he died from brain damage inflicted by his interrogators. The doctors were eventually found guilty of professional misconduct by the statutory Medical Council and given very mild punishment. Dr Neill Aggett, a trade union activist, was murdered during interrogation and that became a cause celebre with thousands of all races marching in the streets of Johannesburg in protest, even though such a march was illegal.

These cases and others led to the formation of a new association of progressive doctors who opposed the use of violence and indeed opposed apartheid as the cause of the violence. One of the more famous of these doctors was Dr Wendy Orr who as a police doctor kept detailed records of the torture suffered by the patients she saw in police custody and published the information. Her life too became endangered but she acted out of conscience and would not retract. Eventually the Detainees Parents Support Committee emerged and much more information was recorded. The University of Cape Town carried out a study showing that some 90 percent of detainees were physically mistreated by the police. The “licence to torture” was no mere figure of speech. Over the years at least a 1000 people were tortured to death or simply killed while in police custody during the struggle against apartheid.

My comrade Issy H. was made to stand in 1964 for days and nights until he was so exhausted he simply and quietly betrayed the whereabouts of another comrade who was then arrested. Issy tried to commit suicide. He bore thick scars around his ankles and wrists where he had slashed the arteries but before he could bleed to death a night guard saw what he had done and his life was saved. Issy was himself sentenced to five years imprisonment and the comrade he had given up was sentenced to life imprisonment and in fact died in prison from cancer that was not diagnosed in time. Issy recovered and his comrade never once berated him, but Issy felt ashamed for the rest of his life. We were always gentle with him and on one occasion I had to take him in my arms while he wept about his sense of shame for the betrayal he had been forced into.

At a book launch I participated in quite recently with my comrade Joyce S., she described the life-long consequences for her of having been tortured into a confession that involved others. While speaking about the book, a volume in a series, The Road to Democracy in South Africa, she suddenly started to talk with great emotion about the use of torture and stood weeping as she spoke. Oh, the cost of freedom and democracy ...

A good summary of relevant information appears in a paper presented to a conference in Mexico in April 2002 by Piers Pigou of the Centre for Violence and Reconciliation. [I have summarised the information taken from the internet.]

During the apartheid era and as the struggle for freedom intensified there was mounting police violence and torture in South Africa.
There were 21000 submissions made to the Truth and Reconciliation Commission by victims of human rights contraventions mainly by the apartheid security forces.
300 submissions were made by members of state security forces in the course of amnesty applications.

It was clear that there was support at the highest level for the use of torture
At least 78000 people were detained between 1960 and 1990 when the negotiations between the apartheid government and the African National Congress began after the release of Nelson Mandela.

In 1986/87 alone, 25000 were detained.
That long nightmare is over and it is just the families of the victims and some of the survivors who are never free of the nightmares.In understanding our past it is necessary to know that the ANC in its exile years in its camps in Africa was faced with serious disciplinary problems and massive infiltration by the apartheid security forces. The ANC’s internal security apparatus resorted to the use of violence and torture against its own members. It instituted its own inquiry and later an independent inquiry into these human rights abuses. It voluntarily submitted its findings to the Truth and Reconciliation Commission (see below).
It is fair to say that many of us were shocked by these revelations and I have to conclude that the evidence from psychotherapists that victims often become perpetrators has great validity. It is especially true where fear of betrayal by people who pose as comrades, leads to a despairing attempt to use violence to maintain unity where there are not the large state resources required for dealing with such issues. Besides being wrong in principle, these methods not only failed to maintain unity, they actively caused disunity. The ANC leadership under the late OR Tambo and Chris Hani largely succeeded in bringing these abuses to an end.

What is clear is that torture and violence flourish in conditions of secrecy and impunity.
The Truth and Reconciliation Commission established as part of the settlement agreed between the apartheid government and the ANC and its allies fulfilled a useful function. I am not sure that all the truth was told and I am sure that reconciliation cannot happen overnight. Only 300 perpetrators came forward to tell their “truths” and claim amnesty from prosecution by the new democratic post-apartheid state. The security forces had used the four years of negotiations before the first democratic elections in 1994 to destroy the evidence of their crimes against human rights; four years in which documents were shredded and incinerated.

So much “had to be” destroyed that they used the blast furnaces of steel mills to do the work for them. They mostly felt safe enough to thumb their noses at the Commission. The TRC enabled ordinary people who had suffered not merely the indignities of apartheid but specific acts of violence against persons to become a part of history. By telling the TRC their stories which were carried in the media many achieved some kind of catharsis. Many achieved closure when the TRC’s investigators were able to ascertain what had happened to those who had been made to ‘disappear’. Some, however, saw the TRC as a kind of whitewashing of the perpetrators who, by appearing before the TRC, escaped prosecutions for crimes as serious as murder. This was part of the legislation enacted by the new Parliament that decided that getting at the truth was more important than formal justice and revenge by judicial punishment. This was a tricky balancing act since the apartheid perpetrators were demanding total amnesty without evidence and the liberation movement which knew that we would not be able to hold a kind of ‘Nuremburg Trial’ of the perpetrators. Ultimately the political judgement was that beginning the process of reconstruction was more important than court processes.

What was surprising was the general (anecdotal) indifference of the white population to the painful stories told. The denial of complicity in apartheid was evident. When pressed, the answer was often: “We did not know what was happening. It was all done in secret!” Who then were the perpetrators? Just some ghosts? Who elected the white regime that turned our country into an imprisoned society? That society of daily indignity, violence and torture did not just happen!

The TRC had a team of therapists at hand to provide relief for victims of the apartheid crimes against their human rights, but the treatment was only at the hearings themselves and could not be long term therapy. As important was the need for counselling for the Commissioners who day after day were exposed to the harrowing tales of brutality and sorrow revealed by the witnesses.

Could the TRC fulfil its role of Reconciliation? I do not know if there is a conclusive answer. At the very least, we know from evidence led in public and subject to cross examination that our allegations of what was done to our people were true and not figments of our imagination as alleged by the apartheid state, its supporters that included governments of the great powers, and the media who always demanded that we produce evidence of what was done in secret! The secret has been blown wide open. It seems to this observer that reconciliation requires the victims to accept that the nightmare is over and the perpetrators get away free of punishment and have no need even to apologise. They draw their pensions and golden handshakes and get on with their lives. The victims also have to get on with their lives and the pain and grief they suffered.

In the Constitutional Court established under our new constitution there is a wonderful art collection organised mainly by Judge Albie Sachs who was himself the victim of a booby trap bomb attached by apartheid agents to his car in Maputo. He miraculously survived. He told me that he felt that having been blown up and having lost an arm and an eye justified his existence because he had spent his time in exile writing laws for the newly liberated Republic of Mozambique while I remained and spent 22 years in prison. That I said was unacceptable self-abnegation. Each of us contributes what we can to liberation. A victim of torture and terrorism by the state, Albie played a leading role in drafting our democratic constitution, which bans torture as illegal.

Among the exhibits in the art collection is a glass-fronted showcase in which there hang an evening gown, an elegant trouser suit and a frock, all made of blue plastic material. They were made by an artist, Judith Mason, to honour a young woman freedom fighter whose male interrogators, unable to break her will, had stripped her naked - and we know what men can do to humiliate women. She had covered her nakedness with a panty made of a blue plastic shopping bag. One of her torturers forced her to kneel and put his revolver to the back of her head. The threat of death was supposed to make her talk. He executed her when he pulled the trigger, “by accident”. he told the TRC. He then buried her illegally on a farm.

He took the Commissioners to her burial place. Her skeleton, all that remained of her, was exhumed. He had buried her in a tiny hole in the ground, upright, in a crouching position. Uppermost was her skull with the bullet hole left by the shot that killed her. Around her pelvis was the blue plastic bag. The artist, so moved by the story, made the clothes to restore her dignity and, I would say, the dignity of all the victims of such brutality.

The remains of others were never recovered. Some were dropped into the deep Southern Ocean from helicopters; some were thrown into crocodile infested rivers to remove the evidence of the brutal illegality. Murder had become a sport for some ‘protectors of the state.’ We even heard stories of police officers celebrating a murder expedition at a barbecue organised by their superior officers.

How can one fail to be moved by the brutality used to maintain a dying system? What I do know is that to be human we have to find ways of stopping such things from happening because not only is the victim dehumanised, the perpetrators and the whole society lose our sense of the value of human life.

Since the end of apartheid and the achievement of our new democracy things have undoubtedly changed for the better. Yet, according to Pigou, it is true to say that police violence and torture have not yet ended.
Basic police training includes study of the Bill of Rights and human rights training
An Independent Complaints Directorate has been created. It has been limited in its efforts by the way in which the police report complaints against their own members, in the sense of the categories of offences that are used.

The South African Police Service adopted a Prevention of Torture Policy in 1998/1999.
Yet there were an average of 14000 cases a year between 1994 and 1997 and on average 1200 officers were convicted each year of violent abuse of prisoners. Not all were torture in terms of the definition which requires the intentional use of physical and psychological abuse for the purpose of extracting information from a person. Deaths in custody range up to 700 a year. It is not clear how many are the result of police violence and how many are caused by neglect of prisoners in ill health, drunk or under the influence of other substances.It is worth noting that in apartheid times torture was not reserved for political opponents of the regime. It was used against petty thieves and other criminal accused. Judges would allow evidence obtained through such methods, asking merely if it was “true.”

Just recently in 2009, a Judge in the Supreme Court of Appeal ruled that evidence obtained by torture of a witness could not be used to convict an accused person even in cases of serious crimes, and even if the evidence is reliable and necessary for conviction. In the case in question it was not the accused but a key witness whose evidence was obtained by torture. The Judge ruled that section 35(c) of the Constitution prohibits the use of torture whether by official or private agencies. He said that the use of such violence was a violation of the human rights of the individual. Indeed Chapter 2 of the Constitution is South Africa’s Bill of Rights and our courts have zealously upheld those rights against the government and others.

I do not think it is possible to legislate for the limited and controlled use of violence to protect the majority, the state or whatever. We have to legislate against the use of violence and torture and terror by the state and its agencies whether official or private. And yet I know that we can dream up scenarios of ticking bombs and suffocating victims of abduction, where we can find some kind of rationale for the security of the many against the rights of the individual. I am also sure, having lived through a few dark times, that there will be incidents where abuses occur and police officers and others will justify their actions in some way. Let our courts and an informed public decide on the merits of each individual case as we strive to overcome abuses and uphold respect for human life, freedom and dignity.

To return to my introductory remarks: it is right that we point to the misuse of violence against persons by governments such as that of the USA, but what about our individual and collective acquiescence in the silence of our own governments, in Europe for example, in the face of such widespread systematic abuse?

South Africa has played a leading role in the African Renaissance, especially during the Presidency of Thabo Mbeki. The concept of human rights and the adoption of African Regional Charters on such rights have been strongly promoted. Among the developments has been the adoption on 23 October 2002 by the African Commission on Human and Peoples’ Rights of the ‘Robben Island Guidelines’ for the prevention of torture and degrading treatment of prisoners. The guidelines were decided upon in 2002 at a workshop held at the famous prison which is now a museum to the triumph of the human spirit.

Some of the elements of the Robben Island Guidelines are: The prohibition of torture; the criminalization of torture; to combat the use of torture; “necessity,” “national emergency,” or “public order” and “superior orders” are not to be invoked as justifications for the use of torture or degrading treatment. Torture is to be prevented by basic procedural safeguards and pre-trial procedures are specifically mentioned. Secret detention centres are not to be permitted. An independent judiciary is essential and the state must respond to the needs of victims of torture and degrading treatment.

The Robben Island Guidelines are in full accordance with other international instruments but make concrete practical proposals for putting an end to these abuses.

In all countries we have to strive to ensure a future free of such abuses. It is essential that there is openness and transparency and a committed leadership that acts against those who abuse their power and position to deprive people of their rights as human beings. A committed leadership can only come from us the masses, the electorate. We who have democratic rights must use them to make sure those rights are protected. If we elect political representatives who are either indifferent to the issue or who support the use of torture and abuse of the rights of prisoners, who are the abusers? We then are the abusers, of course. We cannot escape our responsibility.

The events I talked about in my paper happened 45 years ago and I thought I had myself well under control. But I broke down during the course of my delivery and I do not know why that happened on this occasion because I have described those moments many times before. However, I am taking the liberty of quoting an article by a journalist who was present at my lecture:

Kontextschmiede [from the internet]
Maksim Hartwig on 2 July 2009
(Translated from the German by Denis Goldberg)
“The brutality was immense”

On 25 06 2009 at the Heinrich Heine University in Dusseldorf a conference was held on the theme “Torture and the Future.” Denis Goldberg, longtime campaigner with Nelson Mandela, reported on his experience of inhumanity.

When I entered the lecture theatre before the beginning of the presentation there was hardly anybody there. Two men in suits were in discussion at the podium. A student sat alone in a middle row of the auditorium. I greeted him and sat next to him and asked in amazement where all the people were. The guest that day had after all something to say on the theme of ‘Torture and the Future.’ For 22 years Denis Goldberg was a political prisoner in the Central Prison in Pretoria. South Africa’s apartheid regime separated the white human rights activists from Nelson Mandela and other Black campaigners, who were locked up in the Robben Island prison.

Apartheid was the policy of separation and systematic discrimination of citizens according to ‘racial’ criteria. For nearly five decades they determined the life and suffering of the majority of the population who were not considered to be part of the ruling “White race,” or those who were against the oppressor. Denis Goldberg personally experienced in those times what it meant to be an opponent of the unjust regime.

Respect for human rights requires that torture must be prevented.Slowly the auditorium filled up. When the guest from South Africa entered the room he was full of humour and approachable. He made himself comfortable in front of his audience. In the course of his evidence, however, the gentleness faded away. He stared down the barrel of a revolver while his interrogator played with the trigger. He understood what they meant to do. Whatever he did, he would die.

“The brutality was immense.” One woman, Goldberg recalls, after being mistreated many times over, was covered in a plastic shopping bag and shot from behind. “It is funny to dehumanize a person who is not a person in your eyes,” he said, in trying to understand the motive of her tormenter. “White” farmers would drive their vehicles over their “Coloured” workers. Human rights did not extend to all.

Over and over Denis Goldberg fell silent. He spoke haltingly of some episodes of torture and brutality that appeared in his own report. Sometimes he stopped reading, his gaze dir ected downwards when he described particularly brutal scenes. Psychologically and physically he has not completely recovered. “Am I normal? I don’t know.” He turned to the present. To respect human rights means preventing torture, Goldberg said. Torture in Guantanamo and during the Iraq war, is evidence of lack of respect. The necessity for changed attitudes in our consciousness of human rights, Goldberg explained in German: “The White oppressors, because they were oppressors, were themselves not free.” The change was necessary in order to set free both the oppressor and the oppressed. That became clear to the perpetrators themselves.

Goldberg quoted his friend Nelson Mandela, “Freedom has to be built. The “Whites” have to be freed from their inhumanity.”

At the end of the thirty minute report Denis Goldberg was exhausted. He asked that questions should not be asked. “It is not enough to say I don’t have it in me to be a torturer.” The categorical imperative is not always present in the real world. Even those who are free are not freed from violence. “We are too comfortable,” he says in warning about believing that people are treated as equals.

Walking with very tired steps he was the first to leave the hall.

From: The Mission by Denis Goldberg