The wife of a death row survivor this week demanded that judges be compelled to appear before the truth commission to account for their actions. David Beresford reports
Moments of high drama have become familiar to the proceedings of the truth commission. But there can have been few as memorable as a moment this week when the wife of a survivor of death row threw down the gauntlet to South Africa’s judiciary.
In one of the most forceful expositions of j’accuse yet heard by the commission, Paula McBride tore into the record of the judiciary under apartheid with a submission that threatened to put truth commission chair Desmond Tutu and his commissioners on a collision course with the Bench.
The drama developed as hearings on the judiciary and the legal profession – described by the former archbishop as the most important after those involving victims of human rights abuses – got under way in the commission’s Johannesburg headquarters on Monday.
They opened with a statement by Tutu expressing his “distress” that not a single member of the judiciary had seen fit to put in an appearance. He said their failure to turn up indicated that “they have not yet changed a mindset that properly belongs to the old dispensation”.
It appeared, however, that he was going to let the issue lie with his rebuke until McBride – who married her husband, Robert, on death row in the 1980s and fought an extraordinary battle to save him from the hangman – took the witness stand to demand that the judges be forced to appear.
Her attack had Tutu and his fellow commissioners holding a hurried meeting during the lunch adjournment to decide whether to subject the judges to the ultimate humiliation of a subpoena. No decision was taken, but it is believed sentiment was in favour of confronting the Bench if it proved necessary.
McBride accused the country’s judges of having made a bigger contribution than all the state’s assassins in shoring up the system. “The judiciary enforced every aspect of apartheid from the most petty and degrading to the most murderous and genocidal,” she said.
“They sent people to jail for walking the streets of their own country without a pass; for using ‘white’ facilities; for loving someone of the wrong colour; for trying to live, or set up business outside of ghettos and bantustans. They sent people to jail or the gallows, knowing full well that they had not had a competent defence. They gladly accepted statements that had obviously been secured through torture. They enforced legislation that silenced the press.
“They presided over commissions of inquiry that whitewashed security force excesses and corruption. They upheld the grand theft of the homes and lands of black people. They punished opponents of their system (for their’s it was) with the harshest array of cruelties, including banishments, house arrests, hard labour, lengthy jail sentences and, wherever they could find any pretext, death.
“Yet even up to now they have managed to preserve and propagate the absurdity that they were somehow above it all – impartial.” The judiciary “gave the system a veneer of respectability which the state could flaunt to the outside world and at the same time added steel to the hand that crushed so many of the people of this country”.
Pointing out that leaders of the liberation movement had previously been subpoenaed, McBride – her voice trembling with emotion – demanded: “Why are the judges not being subpoenaed by the Truth and Reconciliation Commission to account for what they have done in our history ?”
McBride went on to give an analysis of cases which she said showed the identification of the judiciary with the apartheid system. She contrasted the trial of a teenage ANC guerrilla who, in an act of war, had planted a land-mine which killed five people with that of a white farmer who – “irritated” by trespassers – had killed two children, aged five and nine, by running them down with a truck. “He drove over them repeatedly, backwards and forwards, just to make sure they were dead.”
The guerrilla, Andrew Zondo, was hanged after his age was found not to be extenuation. The farmer’s age – 70 – was found to be extenuation and he received a suspended five-year sentence. “He didn’t even spend a day in jail.”