On the 9th of September 2020 George Bizos, that unrelenting crusader for justice, succumbed to death at a ripe age of 92.
His passing hit close to home. It left my brother, Mike (a former client of Bizos) heart-broken. I was similarly deeply saddened. He impacted on our lives in different ways. Mike wrote me soon after he learnt of his passing: “My intimates are falling in quick succession. Beginning to feel like I am in the queue”. Not long time ago he lost another close friend – Andrew Mlangeni, an anti-apartheid campaigner, who, along with my brother and Nelson Mandela were imprisoned for furthering the aims of the African National Congress (ANC) and were sentenced to serve in Robben Island.
George Bizos was a legend. He was an unmatched champion of human rights and unquestionably committed to the cause of humanity especially the oppressed and downtrodden. The record speaks for itself: he played a pivotal role in many major human rights trials, among them the Treason Trial, the Rivonia Trial, the Nusas Five Trial, the Delmas Treason Trial. He was also involved in the inquests into the deaths of activists Ahmed Timol and Steve Biko and more recently, the commission of inquiry into the Marikana massacre. He also represented a host of ANC leaders such as Winnie Mandela, Albertina Sisulu and Barbara Hogan in numerous political trials.
When still a young boy Bizos, in the company of his father, set off on a journey that ended in South Africa. They had to leave because they had helped Allied soldiers to hide from the Nazis, and were expecting imminent reprisals.
Years later, as a lawyer and judge, he impacted directly on my life and that of my brother as I shall briefly explain.
Bizos was particularly famous the world over for having been part of the legal team that represented Nelson Mandela, Walter Sisulu and other stalwarts of the South Africa liberation struggle during the Rivonia Trial. It was during the trial that his formidable cross examination skills came to the fore. He had this rare skill of asking a witness deceptively simple questions that at the end of the day would prove fatal for the opposing side. In many respects his style, courtesy and focus reminded me of my soft –spoken friend, Dick Bayford, whose cross-examination skills are legendary. On a few occasions when we locked horns, I emerged bloody nosed! He is in fact our own George Bizos!
I have read a few of his works, including his monumental biography, Odyssey to Freedom. Though it is packed with wisdom, the book also shows him as an admirable human being. For example, we read how he used to bring home-grown salad, cheese and other goodies to his clients, the Rivonia trialists!
Bizos rescued my brother from the gallows. He was Mike’s lawyer back in the 1960’s, in the case where he was charged with Issy Heymann for being a member of banned organizations, namely the ANC and the South African Communist Party (SACP), and for recruiting young people for military training outside South Africa. His friend Issy was only found guilty of one count: being a member of the SACP. My brother was found guilty of the balance of the counts and was sentenced to 15 years imprisonment on Robben Island. He informs me that it was difficult to find lawyers to represent them as most lawyers were scared to represent, “terrorists”. They were lucky that the underground leadership of the movement managed to secure Bizos to represent them. He tells me that Bizos represented them with skill and conviction, despite the fact that they were eventually found guilty as charged, a verdict that reflected badly on the apartheid court, not on Bizos, the lawyer. Mike was very impressed that Bizos was not afraid of whatever evil the fascists might unleash on him for taking on the case.
Many years later, as a justice of our highly respected Court of Appeal, Bizos contributed to the decision of the Court of Appeal in the famous case of Unity Dow v The Attorney General. He later told me that during argument in the matter he had difficulty appreciating the point being made to the court, namely that the founders of our constitution deliberately intended to discriminate against women, and that public opinion was opposed to equality between men and women because Botswana is patriarchal society. To my surprise, the latter part of the argument was again advanced, decades later, before me, but with no success.
On a personal note, however, the case that stands out is that of the Student Representative Council v The University of Botswana. It is this case that saved me and many of my colleagues from guaranteed poverty and suffering, consistent with the law of uneven development that governs the global economic system. Bizos literally made me who I am today, by using law as a tool for justice and in order to promote the right to education. Law in the wrong hands can be an unmitigated disaster while in good hands it can be a liberating tool - especially if it is understood that the ultimate objective of law is the welfare of society. At the end of the day justice is the ultimate aim of law.
In 1989, following a prolonged boycott of classes, the University of Botswana was closed. This was to enable management to sift out ringleaders and ensure they did not return when the university opened. I was looking forward to graduating that same year but unfortunately, Dick Bayford and I were targeted for expulsion because we were considered the leaders of the boycott. Before the axe could fall, however, we got a whisper of this from a member of the university council, someone who is now a leading banker of unparalleled distinction and brilliance in Botswana. He later told me that the injustice and irrationality of the decision was such that he felt he had to warn us. The news came as a shock to me and my family. On hearing of it, one of my sisters broke down and cried. She kept asking me: “How can you, Nnaka, (my young brother) when you are about to graduate and our parents expect you to start supporting them, after they toiled for so long?”.
She was so traumatized that she even called the then Vice Chancellor, Thomas Tlou, our cousin, to find out whether it was true that I would not be allowed to return when the university re-opened.
Terrified, Dick and I managed to convince the Student Representative Council (SRC) to challenge the closure in court. We petitioned the High Court and lost. We appealed. The matter landed in the lap of Bizos who wrote the judgment for the court. In a landmark decision, etched in my mind as Civil Appeal no 1 of 1989, the court ruled that the closure of the university was illegal and that the university council could not close a university for the purposes of sifting out ringleaders with a view to excluding them. Such a purpose ran counter to the mandate of the university which was to promote higher education.
Bizos JA (as he then was) added that education was too important a right to be left to the bureaucrats alone. I have always thought this line was wrong in the context of the Botswana constitution, but it didn’t matter because, as the lawyers would say, it was obiter, meaning that it was not the real basis for the judgment. Apart from that, I loved the polemic and ring of the line. Overall, his superior reasoning shone through the entire judgment. His clarity of reasoning could only be matched by his clarity of expression. Had it not been for his judgement it is probable that Dick and I would be languishing in the streets unemployed and without any degree or other means to do anything useful for ourselves and humanity.
I digress. Back to Bizos. Many years later our paths would cross, especially at conferences organized by Section 27 in South Africa and the International Commission of Jurists. On many occasions we shared the podium, the student and the teacher, as speakers. In one such occasion I walked towards him and teasingly said: “My Lord, may I approach the bench”. He looked puzzled. Enjoying the awkward moment, I persisted: “Afternoon, judge”. He may not have been on the bench then, but in my mind he was a judge. Once judge, always a judge. He chuckled and responded “Key, call me George”. He was humble to a fault, with that rare combination - humility, humanity and brilliance. His modesty and politeness were disarming, a rare quality since members of the legal profession are known to throw their weight around.
I last met him in 2015 at a meeting organized by the International Commission of Jurists (ICJ) in Johannesburg to celebrate the release from prison of my dear friend, Swaziland human rights campaigner, Thulani Maseko. Arnold Tsunga, that indefatigable defender of human rights, had made it possible for the meeting to take place, as he always does, so that proper lessons could be drawn. Thulani was a victim of a judicial officer who was drunk on power and found himself languishing in prison for no reason. In different ways, both the Swazi Constitution and the judiciary had failed him. But that is a chapter for another day.
At this meeting, Bizos took me aside and, his voice almost failing and with deep concern showing all over his face, asked me: “What is the state of jurisprudence now in Botswana? Is there still reluctance by the judges to use the constitution?’’ He was referring to what I once, in an unguarded moment in a judgment, termed constitutional phobia. In the minds of many traditional judges, whenever there is a dispute before court it should only be resolved by invoking the constitution if there are no other grounds that can be utilized. It is a problematic reasoning that pays only lip service to the notion that every law is shaped by the constitution that is the Supreme law.
I say to George: farewell, champion of champions. You were a fine human being. You were respected and loved by many. Thank you for the impact you had in our lives. It is truly amazing that although you was born so far away in Greece you could impact so positively on the lives of sons of peasant parents from Mosalakwane, a sparsely inhabited and denuded oasis of peace, in the outskirts of Bobonong, hardly recognizable by GPS. You were a blessing on our lives. Your commitment to the rule of law is unsurpassed by anyone. You were a living proof that integrity and deep moral compass are not opposites but complementary. We are poorer without you in our midst! Fare thee well George! Robala ka kagiso motho wa batho!