The power of law to challenge injustice

One of Namibia’s senior judges, David Smuts of that country’s Supreme Court, has just published a book on his work during the 1980s when Namibia was still virtually a province of South Africa. At that time, Smuts was a young lawyer determined to make a difference by exposing and curbing the shocking human rights atrocities he knew were taking place in Namibia on the orders of the SA government or its security arms. It’s a book full of thrilling stories about his work in that period, reminding readers of the power of law – and lawyers – to challenge injustice. As Smuts puts it himself in the sub-title of the book, it is the story of ‘a lawyer’s battle to hold power to account in 1980s Namibia’.     

Bad though things are in South Africa at the moment, they are not anything like as fearful or difficult as the successive states of emergency, the political oppression and brutality of the 1980s. And perhaps it is because the politics of those years in SA were so all-consuming that I seldom focused for very long on what was happening next door in what is now Namibia.

That is one reason I was pleased to discover that David Smuts, now a member of Namibia’s supreme court, and a judge whose decisions I have read for many years, has written a book about the 1980s in his country. It is a chance to catch up and remember that our neighbours were also having a terrible time under what amounted to the same government as in SA, or its extension via that the SA government’s local lackeys.

Terrorism trial

Smuts’s family moved to Windhoek from Pretoria while he was still at high school and straight away, he felt at home. He had already decided that he wanted to become a lawyer who would defend people charged with political offences. A day spent observing a terrorism trial in Pretoria had added to his certainty.

Now that earlier decision was confirmed, though in his adopted country. As in Pretoria, his determination was made stronger by attending hearings in a high-profile political trial, this time a case involving Swapo activists charged under the Terrorism Act.

His initial law studies complete, Smuts had an introduction to some of the difficulties involved in his chosen work when he was conscripted into the army. Because of his law degree, he was posted to Windhoek as a law officer. His duties included appearing in courts martial and reviewing disciplinary matters. The corruption and serious infringement of human rights experienced in that position only strengthened his resolve.

Detentions

For a couple of years afterwards, he served articles with a prominent Windhoek firm of attorneys. He learned in the process that supporters of apartheid could make life difficult for lawyers who provided legal representation for people accused in political matters. Do anything that seemed to challenge the existing system, and the people with money would take their legal work elsewhere.

A year’s break for post-graduate study at Harvard gave Smuts time to reflect. He had already developed a special interest in the many laws that provided for detention without trial and in how that system actually worked. Perhaps, he wondered in the months away from home, he should shift his focus. What if he were to look for ways to ‘mount assertive challenges to detentions and oppressive practices’? As a focus it seemed a particularly good plan since the state had by this time reshaped its own strategy, seeming to prefer prolonged detention of activists away from the public eye, rather than lengthy trials, in the open, where lawyers would be liable to interfere.

Remembering that period of sharpening focus, Smuts writes, ‘I no longer saw my role as primarily a defence lawyer. It was rather the pernicious system that should be put on its defence, by seeking to use the law to bring about accountability.’

He returned home with his mission clarified: he wanted to expose injustices and the torture he by now knew was routinely used by the security forces and police. He would find ways to demand accountability from those in authority. And over the next years until the advent of genuine independence for Namibia, there would be no shortage of clients and cases through which to do exactly this.

Atrocities

From this point on, the book relates one story after another illustrating the tactics of the security forces and the police, and the way Smuts and those who helped him worked to expose these atrocities. It also tells the story of the murder of Smuts’s friend, the prominent Swapo activist Anton Lubowski, and the impact of his death and the subsequent investigation. Along the way many names emerge that were or have since become well known; men involved in SA’s secret security system, often with links to drugs and corruption, willing to bomb or murder to order. 

One thing that will strike a reader familiar with that period in SA: Smuts cuts something of a lonely figure. Few activist lawyers in SA at that time were likely to have felt as isolated as he must often have done, though at one stage he worked for a firm of attorneys whose members gave him at least some support.

Curfew regulations

With few other local lawyers to rely on for help with this important work, he had to cover enormous distances to see clients, often battling under local curfew regulations that meant his clients had to be home and off the streets well before dark.

But in addition to a few dedicated local people willing to put their own safety at risk, he was also fortunate to have eminent SA lawyers prepared to help him with advice, to think through strategy and sometimes even to argue particularly important matters.

The list of the legal great and good included Arthur Chaskalson who founded the Legal Resources Centres in SA and went on to become the first head of the SA’s Constitutional Court, not to mention Sir Sydney Kentridge who, for example, spotted a breakthrough argument for Smuts’s case against one particularly challenging government repressive action. Now-retired judge Ian Farlam, Denis Kuny SC and eminent silk Jeremy Gauntlett who has long been generous with his help in human rights issues beyond SA’s borders – they were all willing to assist Smuts and his tiny band of local helpers.

Church leaders

Among others, church leaders proved invaluable as allies, agreeing that legal applications could be made in their names and helping organise people who could be interviewed or provide statements. Also helpful were certain members of the Namibian media, particularly Gwen Lister, whose reports – along with those of the Southern African Catholic Bishops Conference and other church bodies – helped keep international attention focused on what was happening in that country.

Space does not allow me to retell a story or two, but this is a not boring book nor is it full of technical legal terminology. Smuts has written exciting stories, tales of bravery and quick-witted outsmarting of the security establishment. And even when a particular court argument did not persuade the judges, the case and the information it allowed to be made public, kept the eyes of international human rights community on Namibia. All of this added to the pressure on SA to quit the country – and, eventually, allowed for genuine independence in February 1990.

Smuts continues to be generous with his time and energy in the battle against injustice, and has been a trainer on courses offered by the Judicial Institute for Africa (Jifa). 

Smuts, D  (2019) Death, Detention and Disappearance. A lawyer’s battle to hold power to account in 1980s Namibia  Cape Town:Tafelberg