‘The Road to Freedom Passes Through Gaol’: The Treason Trial and Rivonia Trial as Political Trials
Chapter 7 Mia Swart* This Court … is a pointless institution from any point of view. A Single executioner could do all that is needed.1 The year 2013 was an auspicious one in South African history. It marked the fiftieth anniversary of the Rivonia trial. It was also the year of the death of Nelson Mandela, struggle icon and symbol of South Africa’s liberation. In the weeks after Mandela’s death, Mandela’s statement from the dock during the Rivonia trial2 was frequently referred to in obituaries.3 This is but one indication that the Rivonia trial has become integral in popular perceptions of South Africa’s freedom struggle, liberation and transition. In many ways Rivonia represented a watershed moment: the moment when the South African justice system was publicly and defiantly called racist and unjust. It is the public nature of the political trial that allows it to function not just as an object of resistance but also as a space of political critique and a space of struggle. The mere fact that such a trial can attract significant publicity to the cause of the accused means that a trial of this kind can be politically instrumentalised in a positive way for the accused. During the Defiance Campaign protestors against the judicialisation of the protests held up posters proclaiming ‘The Road to Freedom Passes through Gaol’.4 The demonstrations accompanying political trials as well as the media coverage of the trials reflected and heightened the political value of the trial. It was clear to the protestors that the state was engaged in the criminalisation of the political opposition through trials. Those who stigmatise political trials fail to acknowledge the positive ripple effects of such trials when such trials allow the accused to strategically use the trial process in their favour. I will conclude that the positive publicity benefits of a political trial will always be limited because it will be circumscribed by what the state allows. In spite of the different kinds of political trials and in spite of the fact that the particular political circumstances surrounding such trials will always differ, the state will almost always dictate the outcome of the trial. Although some consequences of political trial might be unforeseen, the state always wins. What was remarkable about the Treason and Rivonia trials, however, was that clever and creative defence lawyering could achieve a more powerful public impact than the state could have foreseen. The Treason trial is a particularly atypical form of political trial since the accused were all acquitted. Significantly, the term political trial has been applied in a wide variety of contexts. Albertyn writes that political trials can occur in authoritarian regimes as well as liberal democracies. She points out that ‘they have been conducted under the most rigorous and substantive requirements of the rule of law and in conditions where the trial form has provided a flimsy veneer of legality over an underlying reality of violence and torture’.5 Shklar uses Nuremberg as an example of a classic political trial that served liberal ends because of its implicit promotion of legalistic values to lay the foundation for future constitutional politics.6 This chapter is primarily concerned with the notion of the ‘political trial’ and the extent to which this label applied to the Rivonia and Treason trials respectively. But trials are not only a means of deciding political disputes. The meaning or definition of the concept of the political trial in itself is also strongly contested. The contested nature of the concept of the political trial will first be discussed. After an examination of the history and meaning of the term ‘political trial’ I will distinguish between different kinds of political trials after which I will turn to an analysis of the extent to which the Rivonia trial and the Treason trial merit the description of a political trial. The question of whether and to what extent the trials also benefitted the ANC will receive attention. What might political trials teach us about our normative commitment to legality and the rule of law? Barbara Falk provides one answer to this question: when legal norms are followed, rather than deliberately, covertly or systemically undermined, the legitimacy of legal decisions is enhanced.7 Whereas the political direction and manipulation of courts is a hallmark of authoritarian regimes, law and politics are not as separate in liberal democracies as one might expect. The term political trial is often used quite freely and loosely.8 Eric Posner writes that the term political trial may refer to any trial in which a person is tried for engaging in political opposition. In Posner’s view, a trial is also characterised as political when it presents a question that transcends the narrow issue of guilt or innocence by implicating larger societal and cultural considerations.9 This type of trial can of course also take place within a democratic state. This can also be called the ‘democratic’ version of the political trial that Albertyn referred to when she stated that political trials can also take place in liberal states. This understanding of the term ‘political trial’ extends the applicability of the term to cases one would not traditionally consider to merit the description of a political trial. While there might be some truth in the proposition that all trials contain elements of the political in that they reflect the values of the political system within which courts operate, such a generic approach does not allow us to retrieve features unique to the concept of the political trial and multifaceted manifestations.10 Political trials fall on the faultline of law and politics.11 The term political trial is notoriously difficult to define.12 Whereas some authors distinguish between various forms of political trials, Falk sets out a list of criteria she considers potential markers of political trials. These criteria include: an obvious political motive for the trial, the fact that the accused are political enemies of the state, the trial is ideologised and sensationalised by the media, the use of secret evidence, etc.13 But she emphasises that the historical and political context and the facts of a case are ultimately more determinative of whether a trial is a political trial. In political theory the term ‘political trial’ has a specific meaning. The jurist Otto Kirchheimer wrote in his seminal study Political Justice: The Use of Legal Procedures:14 ‘Throughout the modern era, whatever the dominant legal system, both governments and private groups have tried to enlist the support of the courts for upholding or shifting the balance of political power.’15 Kirchheimer suggests that political trials are trials in which ‘the courts eliminate a political foe of the regime according to some prearranged rules’.16 To Kirchheimer the prototype of a political trial has been the criminal trial of a political adversary for political reasons.17 Kirchheimer argued that political trials serve to legitimise state action most successfully when the legal procedures coincide with the dictates of the rule of law. It can be argued that this analysis applies especially to the South African political trials under Apartheid. Ironically, in the case of the Treason trial and Rivonia trial the Apartheid state could have benefitted more if these trials departed more from the rule of law. Albertyn refers to the ‘still dominant ideology of the rule of law’ at the time of the Treason trial.18 The fact that some minimal fair trial guarantees were upheld could have helped the trials to appear more legitimate. The trials would not have been decided the way they were under a substantial ‘thick’ understanding of the rule of law.19 Of relevance here is what the scholar Ronen Shamir identified as the legitimising role of ‘landmark decisions’.20 Shamir explores how courts can support the dominant political interests and at the same time appear impartial.21 In the context of the Israeli occupation Shamir shows how in the majority of the cases the Israeli High Court of Justice upholds the decisions of executive, however, in order to maintain the legitimacy of the court, it intervenes in a few landmark cases.22 He argues that the majority of landmark decisions of this kind in Israel were symbolic rather than substantive. Following Christensen I will argue that a distinction should be made between those political trials which are totally unsupported by law and those which, while proceeding with a political as well as a legal agenda, are within the rule of law.23 It can be argued that both the Treason trial and the Rivonia trial took place within a context of procedural rule of law but not substantive rule of law.24 To an extent the Rivonia trial even lacked aspects of the procedural rule of law.25 Although the Rivonia and Treason trials may be the best documented of South Africa’s political trials during Apartheid, it is important to keep in mind that there were many other ‘political’ trials that did not receive the same attention. Ahmed Kathrada has pointed out that the Rivonia trial overshadowed many other important trials.26 It will be clear from this chapter that one can learn as much from the Treason trial as from the Rivonia trial. To Kirchheimer, political trials are clearly about using judicial devices to attain political objectives. Political trials are instances in which ‘court action is called upon to exert influence on the distribution of political power’.27 It is striking that Kirchheimer therefore does not necessarily define political trials as trials which are used for the sole purpose of consolidating the power of the state. It is clear that Kirchheimer defined political trials in quite a broad way. Rather than accepting one definition of ‘political trials’, scholars have distinguished between different types of political trials. Christensen, for example, differentiates between political ‘trials’ (involving violations of due process guarantees), the ‘political’ trial (camouflaged as a criminal trial) and the politically motivated political trial.28 The distinction between the second and third of these kinds of trials can of course be very subtle. I will primarily distinguish between four kinds of political trials: the first species of political trial I will be concerned with is the political trial in the strict sense of the term. Such trials are characterised by the fact that they are completely arbitrary29 and that all standards of fairness, justice and due process are disregarded during such trials. Notorious political trials of this kind (also called partisan trials) would be the trials by the Volksgericht in Nazi Germany and the purge trials of Stalinist Russia, where many of the judges, prosecutors and defence attorneys served as instruments of terror and propaganda for totalitarian systems in which the legal process and the space of the courtroom are mobilised to rationalise and justify the rule of the absolutely corrupt.30 Kirchheimer argues that the image-creating effect of certain instruments of a political system serve the purpose of manipulating and rallying public opinion in accordance with the political needs of the moment.31 Leora Bilsky refers to these kinds of political trials when she describes political trials as sham legal proceedings designed by authorities to dramatise specific political campaigns and/or to eliminate prominent individuals.32 A second type of political trial is the trial initiated as a result of particular kinds of political legislation. It usually takes the form of a criminal prosecution of a political opponent of the ruling party for breach of a law designed to ensure the maintenance of the status quo, generally termed a ‘security law’. Trials that fall into this second category of political trials do not violate the rule of law to the same extent as the first or ‘pure’ kind of political trial. It can be said that whereas the first type of trial does not even possess the veneer of the procedural rule of law, the second type of trial can at least claim to observe the procedural rule of law. Typical examples of such forms of political legislation in the South African context would include ‘security’ legislation and anti-communism legislation such as the Suppression of Communism Act,33 trials initiated under anti-terrorism legislation such as the 1967 terrorism trials under the Terrorism Act34 and legislation implementing states of emergency. Political legislation of this kind is often drafted very widely and vaguely to encapsulate almost any type of behaviour the state finds undesirable. The trial of Julius and Ethel Rosenberg was an example of this kind of trial.35 In the view of Christensen post-war trials such as the trial of Dreyfus and that of the Rosenbergs can be described as ‘products of hysteria’.36 Within this category the state can allow for varying degrees of due process ranging from trials in which fair trial guarantees are only nominally observed to trials in which good lawyering still have some limited ability to affect the fate of the accused. The third kind of political trial is the trial that may take the form of a defamation action designed to destroy the credibility of a political figure, what Kirchheimer called the ‘derivative political trial’. In certain circumstances the prosecution of an ordinary criminal offence could also be a ‘political trial’. This would be the case if a trial attracts a significant amount of public attention or when a crime was motivated by race or gender discrimination, for example. Examples of such trials would include the O.J. Simpson trial, the Kastner trial in Israel,37 and the trial of Lorena Bobbit.38 Throughout the Apartheid era there was a widely held belief that the South African Apartheid judiciary was independent. As a retired judge wrote, ‘It is high time that the world realised the South African judiciary is independent and that its judges are not amenable to pressure from government, public or another source’.39 According to Cathi Albertyn, the debate on the political trial in South Africa is complicated by the fact that judicial decisions in South Africa were not the result of a conspirational collusion between government and the judiciary. It has been suggested that judicial decisions should rather be understood as the result of a more complex process. Although the South African judiciary had to uphold (at least cosmetically) basic fair trial standards, the outcome of trials were deeply influenced by the fact that the judges shared the ideologies of those in power.40 The more political the legislation was the judges had to interpret, the more the backgrounds and beliefs of the judges determined the outcome of a case.41 The term political trial is not necessarily pejorative and political trials do not always serve the interests of the state or the prosecution. Occasionally a defendant and a defendant’s lawyers can reconfigure and appropriate the discursive and spatial openness of the courtroom in their programme to contest the normative legitimacy of the political order, to subvert or undermine the legal system, and generate political capital for their political goals. With the exception of the first category (the Volksgericht variety), all political trials can, to varying extents, be re-signified and used by the defence. Bilsky shares the view of various scholars42 that trials, whether domestic, international or transnational, inevitably have political consequences. If this is the case, the question of whether a trial is political or not obscures more than it reveals. In essence she argues that the characterisation of a trial as a political trial is not inherently pejorative. Instead, she argues, we should ask what sort of politics each type of trial promotes, and what kind of procedures and legal doctrines are available to the court to balance the politics while fighting niches of immunity.43 Christensen agrees that political trials can have positive value. In his opinion: Political trials serve a free society by bringing together for public consideration the basic contradictions which arise from the clash of conflicting values and loyalties. The tensions over the relationship of the private to the public realms, the rightness of policy and of dissent, the nature of representation, and the legitimacy of government are all present in any political system. Especially in crises, these tensions must be faced.44 In the Treason and the Rivonia trials ‘the accused became the accusers’.45 The trials would therefore meet Christensen’s criteria of trials that serve a free society. The German Volksgericht or People’s Court46 was essentially Hitler’s court. The court was created by Hitler in 1934 as a Sondergericht or special court. The court was created as a direct result of the controversy surrounding the Reichstag fire and Hitler’s dissatisfaction with the fact that all but one of the accused in the so-called Reichstag fire trial were acquitted.47 An important function of the court was to intimidate the German public. The court was clearly an instrument of terror and propaganda. This section will merely serve to highlight some of the most egregiously political features of this court. Although the Nazis intended to make the Volksgericht a reliable instrument for conducting propaganda trials, the use of professional jurists on the court indicated that (at least initially) they were hesitant to violate the tradition of (or at least the perception of) an independent judiciary.48 This changed rapidly as Hitler consolidated his grip on power. Christensen points out that five of the seven People’s Court judges were chosen from the Nazi Party, the SS or the military.49 As pointed out by William Sweet, the Volksgericht was ‘an entirely constitutional creation’.50 Article 105 of the Weimar Constitution forbade the creation of courts for the trial of individually determined cases, but not special courts for trying general categories of cases.51 The Court had jurisdiction over ‘political offences’ and primarily passed judgement on cases including treason against the Third Reich.52 The court often handed down a large number of death sentences, especially under Judge-President Roland Freisler. With very rare exceptions, the court almost always sided with the prosecution. Significantly, defence attorneys had to get permission to appear before the court and could be disqualified from the start of a trial. Even if defence counsel was admitted, counsel for the defence usually remained silent during trials. There was no possibility of appealing a judgment. Furthermore, Hitler and Goering retained the right to quash the criminal proceedings in the event the result would be unfavourable.53 The Volksgericht was initially created only as a ‘temporary expedient’54 and later made permanent. It was only after 1940 that the court adopted prejudicial and inquisitorial procedures. The famous Volksgericht trial of Sophie Scholl and her fellow White Rose activists55 illustrates the working of the Volksgericht at its most aggressively prejudicial stage. This trial has been described as even less than a show trial because the entire trial was concluded in less than an hour without evidence being presented or any arguments being made on either side. The show trials that took place during Stalin’s rule of the USSR also constitute examples of trials that were so far removed from any notion of substantive and procedural legality that they can be described as completely arbitrary. The purpose of these trials was to target Stalin’s enemies – both real and perceived. For example, anyone associated with Trotsky was considered an enemy of Stalin, and this brought with it imprisonment and death. The NKVD56 (the law enforcement agency of the Soviet Union) was handed a list of those who were labelled ‘enemies of the state’ – effectively the Bolshevik Party’s Old Guard. Stalin viewed these men as potential rivals and they were charged with plotting to kill him. Anyone associated with these men was also under suspicion. The first trial that formed part of the ‘Moscow trials’ took place in 1936.57 The trial involved 16 members of the ‘Trotskyite-Kamenevite-Zinovievite-Leftist-Counter-Revolutionary Bloc’.58 The two main defendants were Grigory Zinoviev and Lev Kamenev. The primary accusations against the defendants were that they had, in alliance with Trotsky, been involved in the assassination of Sergey Kirov in 1934, and of plotting to kill Stalin. After confessing to the charges, all were sentenced to death and executed.59 The show trials had to prove the guilt of the defendants, preferably with a very public admission of betraying the revolution and therefore the people.60 The trials were carefully staged. If defendants refused to ‘cooperate’, i.e., to admit guilt for their alleged and mostly fabricated crimes, they did not go on public trial, but suffered execution nonetheless. Interestingly, foreign journalists were invited to these highly public trials and were there to prove to those in the USSR that ‘enemies of the state’ still existed and that leaders such as Stalin were at risk. After the conclusion of these show trials, Stalin had managed to bring both the party and the public to complete submission to his rule. The Treason trial was the longest and probably the most complex political trial in South African history. It was also the first South African treason trial to be heard in conditions of peace. For the ANC the case had important political implications. If one compares the Rivonia and Treason trials one cannot fail to be struck by the difference in outcome of the two trials: whereas all the defendants in the Treason trial were acquitted, most of the accused in the Rivonia trial, including such struggle stalwarts as Nelson Mandela, Walter Sisulu and Ahmed Kathrada, were convicted, narrowly escaped the death penalty and were sentenced to life imprisonment. The juxtaposition of the 1963 Rivonia trial and the five-year-long Treason trial, which concluded in 1962, raises the obvious question: given the close proximity in time, how could the outcome of the Treason trial have been so different from the Rivonia trial? Although this question will receive attention, it will not form the focus of this chapter. In his brilliant analysis of the Treason trial, Stephan Clingman discusses two motivations the state might have had for initiating the trial: first, the state, alarmed at the swell of resistance politics through the 1950s, including the Defiance Campaign and the Congress of the People, ‘felt a compelling need to counteract and literally delegitimise’ resistance politics.61
‘The Road to Freedom Passes Through Gaol’: The Treason Trial and Rivonia Trial as Political Trials
Introduction
What is a Political Trial?
Typologies of ‘Political Trials’
The Volksgericht (1934–1945) and Stalinist Show Trials (1936–1938)
The Treason Trial