The Rivonia Trial: Domination, Resistance and Transformation
Chapter 6 Catherine Albertyn Where there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power. Should it be said that one is always “inside” power, there is no “escaping” it, there is no absolute outside where it is concerned, because one is subject to the law in any case? … This would be to misunderstand the strictly relational character of power relationships.1 The Rivonia trial is the story of domination and resistance, of despair and hope, of endings and beginnings. It was, without question, a devastating blow for the African National Congress (ANC) and its allies. Four years after the organisation was banned in 1960, and after thousands of arrests, detentions and trials of opponents to apartheid and white rule, the leadership of the ANC was arrested, tried and imprisoned for life, others fled into exile and internal resistance to apartheid all but ended. A white community that had been ambivalent towards the authoritarian policies of apartheid found some consensus around the censure of African political aspirations as fermenting violence and revolution, and some comfort in an economy that had shrugged off the uncertainty generated by the protests and state of emergency of the early 1960s to enjoy unprecedented levels of growth. In this climate, apartheid became less contested and more entrenched. If the trial signified an unprecedented white consensus, it was also a site and focus of struggle and resistance. It closed a chapter of internal struggle in which the ANC and its allies had shifted from petitions, to boycotts and civil disobedience and, finally, to sabotage. But the legal space of the trial enabled a full justification of the turn to sabotage, and of the liberation struggle itself. The trial – especially Mandela’s opening statement for the defence – provided the opportunity to oppose the criminalisation and censure of resistance by the state, to (re)write the history of the struggle and to provide an enduring rallying point for future struggles that culminated in the unbanning of the ANC in 1990 and the first democratic elections in 1994. In many ways, Rivonia marks the beginning of our contemporary memory of domination, resistance and democracy. In his classic 1961 text on political trials, Political Justice, Otto Kirchheimer locates political trials squarely within the ‘fight for political domination’: Court action is called upon to exert influence over the distribution of political power. The objective may be to upset – fray, undermine or destroy – existing power positions or to strengthen efforts directed at their preservation.3 Of course the court is only one site of political control, but it is one that has particular rewards. Not only can it eliminate political opponents, it may also have significant ideological effects that enable political regimes to legitimate political action and ‘integrate the population into their political goals’.4 Power-holders will seek to mobilise public opinion by surrounding the legal defeat of their political opponent with ‘a wider framework of historical and moral justification’.5 But even as they do so, those in opposition will endeavour to use the courtroom to win support for their explanations and justifications.6 Where political trials are not the ‘telephone justice’ of show trials whose outcomes are known in advance, but constitute a ‘more civilised political game’ in which procedural and substantive norms limit a state’s capacity to punish its opponents, they provide a more uncertain judicial contest.7 Indeed, legal procedures and the dictates of the rule of law enable procedural standards that offer some protection, the possibility of alternate versions of evidence, and even acquittal.8 While these trials pose higher risks, the allure of legality, fairness and the rule of law promises more glittering rewards, especially in their educative effects. Kirchheimer’s insistence on the political nature of law and on the educative effects of a trial is fundamental to understanding the role and effects of political trials. However, Kirchheimer tends to limit his enquiry to the immediate effects of a trial – rather than its place in longer political and economic struggles. As I hope to demonstrate in this chapter, political trials are best understood in the longer term, especially in understanding the resort to law, its form and substance, and the deeper political and ideological battles that the trial serves. In other words, if Kirchheimer inclines to a more instrumental and functional idea of the state, law and power,9 I argue that political trials, as well as the use, form and content of law in these trials, can best be understood within the changing nature of political and economic struggles, the dialectic between the state and its opposition, and a more relational understanding of power. Political trials should be analysed and understood within the political, ideological and economic conditions of their time. In particular, we should understand how the delegitimation of political opposition, that occurs through a specific trial, is located in wider discourses of disapproval and censure that are rooted in broader political and hegemonic struggles. The location of the trial in political struggles highlights the dual nature of political trials as a form of political domination and as a site of struggle and resistance. The trial is a repressive and an ideological attempt at domination. However, if we understand power as relational, rather than merely instrumental, then in those forms of repressive and ideological control lie the possibilities, modes and strategies of resistance.10 In each instance, the particular forms and methods of domination and of resistance will be historically contingent, with historically specific effects. At the heart of political trials is the criminalisation of political opposition and dissent, and resistance to that label. The criminal label is a complex one, located in wider ideas, attitudes and discourses. Criminological literature has long understood the links between the public understanding of a crime, social attitudes, the shifting use of the crime against different groups and activities, and how the ‘criminal’ label is used to ‘prepar[e] the ground for … the exercise of legal restraint and political control’.11 To illustrate the links between crime, ideology and control, Sumner has suggested that categories of crime and deviance be analysed as ‘negative ideological categories with specific material application’ called social censures.12 By this he refers to ideas that are part of everyday language and appeal to general moral principles, such as ‘slut’, ‘mugger’ or ‘pervert’, with general, predictable moral and political targets that they seek to marginalise, denounce and control. Sumner further argues that these tend to express the moral and political disapproval of the dominant class, gender, race, etc., and to affirm dominant norms and ideologies. Thus censures can be understood within the ‘ideological discourse and social interests which support and constitute them … the phenomena they interpret and classify, and the historical conjuncture within which they are applied’.13 Sumner argues that political censures target political movements, ideas, individuals and activities that challenge the dominant social relations of class, race, nation, gender, etc. As Mahabir wrote, colonial and neo-colonial elites: often use their power as lawmakers to undermine (oppositional) movements … They label as serious crime social phenomena such as resistance movements, labour strikes, mass demonstrations (and) rallies, acts of civil disobedience … They refer to participants as subversives, conspirators, terrorists, communist instigators, as dangerous criminals committing treason and sedition, as instigators of riot.14 Generated in political struggles and social practices, political censures have particular sets of meaning and historical resonances. In South Africa, the dominant political censures of the period under review included communism, (communist) agitation and violence. Each was articulated in a variety of institutions, discourses and practices before becoming institutionalised in different ways in the criminal law. On their own and in legal provisions, they are composite ideological categories with multiple ideological inputs. Their power derives from the fact that they arise out of and link into everyday norms, feelings, fears and moral principles as well as the political and legal discourses of the state. Hence their deployment in courts can trigger a range of fears, prejudices and ideas about the necessary political and social order, thus rendering them particularly powerful forms of condemnation and ideological control.15 The composite nature of censures and their ability to trigger particular ideas, fears and prejudices means that they can be used to unite people around particular issues, against a particular group and/or set of ideas, and in favour of a specific course of action. Not only can censures be powerful images of disapproval, operating to condemn and exclude; but equally significant is their potential to affirm and defend a desired political order and way of life.16 Giddens argued that the power to distinguish between what is political and what is criminal, together with the ability to define which political programmes, policies and practices are in the ‘general’, ‘public’ or ‘national’ interest and the articulation of historicity (the ability to ‘invent’ the history of the nation-state, the myth of origins, the common destiny), encapsulate critical ideological dimensions of the modern nation-state.17 Political censures can play an important role in struggles around the definition of nation, citizenship and the appropriate social and economic order. Most importantly, censures are contested categories. As Sumner notes, censures can only be properly socialised to the extent that their generalised and authoritative dissemination is unopposed by oppositional ideologies and organisations. Censures are part of wider hegemonic struggle, and are always contested and changing, requiring constant renewal, defence and modification. ‘Certain meanings and practice are chosen for emphasis’, others ‘neglected and excluded’.18 Writing about the use of the criminal label in colonial and post-colonial society, Mahabir notes that ‘[t]hese terms (of the state) are counteracted … by members of the subject populations with terms such as organizers, nation-builders, freedom fighters and political prisoners’.19 In South Africa, ideas of criminality, communism and violence were part of the repertoire of the apartheid state in delegitimating the political opposition and its ideas of racial equality and universal suffrage. In response, the political opposition resisted the label and sought to justify its own ideas of non-racialism, equality and political rights. Censures are particularly powerful when located in a wider system of criminal justice and judicial pronouncements which claim to represent a universal social order.20 When political censures are targeted at selected groups and individuals through the medium of law and a trial, they play an important role in the struggle for hegemony. And just as the state uses courts to denounce its opposition, so the opposition exploits law and courts as sites of struggle and resistance, challenging the censures of the state, creating a platform for political programmes, and justifying its aspirations, acts and ideas. It thus participates within a hegemonic struggle for legitimacy, and the ability to define and claim the nation. The pre-democratic South African state was consumed by the need to address the ‘native question’. When the National Party (NP) assumed power in 1948 on a platform of racial ‘apartheid’ (literally separateness), the white community was divided over the appropriate shape of capitalism and society, and how to address growing claims for political and economic inclusion by black South Africans. On the one side, the NP advocated for legally enforced social segregation, greater controls on the movement of black workers and a racially segregated workforce, and opposed political inclusion and racial equality. On the other, the United Party (UP) opposed legally (rather than socially) enforced segregation and supported fewer controls over movement and a settled, less racially stratified workforce. Following the Cape liberal tradition, it opposed full racial equality, adopting a paternalistic lobby for ‘white leadership with justice’ and the gradual incorporation of black South Africans into political and economic life through a qualified franchise, negotiation and evolving economic rights in line with the interests of capital. The NP used its slim parliamentary majority21 to implement apartheid through laws that imposed an increasingly repressive and segregated labour framework; enforced social separation;22 and limited black political aspirations.23 Its repeated attempts to remove coloured voters for the voters’ roll generated significant resistance from white South Africans.24 But its core ideas of white supremacy and apartheid conflicted directly with the demands of black South Africans for non-racialism and equality. Indeed, the post-war period saw the intensification of political struggle as the ANC eschewed constitutional means of protest to adopt more militant extra-parliamentary means and campaigned for full equality, based on ‘universal suffrage, equal rights, the rule of law, a mixed economy and the provision of social welfare’.25 As the NP ratcheted up the implementation of apartheid, so resistance to these policies grew and organisations joined the ANC in a broad-based ‘Congress Alliance’ that called for a National Convention to decide on an inclusive future. The Congress Alliance challenged the state with passive resistance, boycotts, strikes and civil disobedience, culminating in the Defiance Campaign of 1951–2, the largest non-violent resistance seen in South Africa, and in the adoption of the Freedom Charter at the Congress of the People in 1955. The Freedom Charter was a comprehensive statement of a non-racial South Africa and asserted a common nationality, a non-racial democracy, equal rights, and redress and redistribution to secure full equality.26 Of course such resistance spurred deeper repression and ideological censure, within the constraints on an increasingly thin notion of the rule of law. Two features stand out. First, the passage of the Suppression of Communism Act 44 of 1950 (SoCA) outlawed the Communist Party of SA (CPSA) and enabled the state to criminalise a broad range of political activities as ‘communist’ and to act against persons and organisations associated with ‘communism’. Second, in the Treason trial the state sought to criminalise the entire struggle as communist and, therefore, treasonous. Formed in 1921, the CPSA was committed to full racial equality.27 It was a racially integrated political organisation that attracted a range of activists, black and white, and elected (white) members to parliament and city councils. While its manifesto linked it to global communist ideals, its acceptance of a ‘two-stage revolution’ meant that its immediate goals in South Africa were full political equality and democracy, thus placing it ‘squarely on the side of the ANC and national liberation’.28 As with many political censures, the criminalisation of communism in the SoCA followed decades of political, capitalist, bureaucratic and social concern over the influence of communists amongst black miners, ex-servicemen and in extra-parliamentary politics. In the growing East/West divide of the post-war world, it is not difficult to see why the South African government acted against the CPSA in 1950, at least in the traditional interpretation of communism. However, the passage of the SoCA was accompanied by a growing censure around communism extending well beyond its conventional meaning. Despite prominent references to the international context, the ‘intense and deadly struggle, creating turmoil throughout the world’,29 communism had its own distinctive set of meanings and targets in South Africa. The SoCA was not a means to control a few communists but a weapon to suppress all extra-parliamentary dissent and censure all forms of multi-racial political activity. This was made explicit by a Nationalist MP in the parliamentary debate: (Communism) causes troubles among the Natives … it incites the Natives and … it preaches equality. Now when one preaches equality it means that all the Natives will eventually have to get the franchise … on the same basis as the European, then this will not be a white republic or a white dominion but it will be a black republic … That is why we come here and state in the definition … that a person is not allowed to cause trouble between Europeans and Non-Europeans.30 The wide definition of communism criminalised a broad spectrum of political activities and included any doctrine or scheme which aimed at: bringing about any political, industrial, social or economic change within the Union by the promotion of disturbance or disorder … unlawful actions or omissions the encouragement of feeling of hostility between European and non-European races of the Union the consequences of which are calculated to further the aims of [communism]. Any person deemed to further the aims and objectives of communism, as defined, could be listed, banned, prevented from attending meetings or from meeting another banned persons, restricted to particular areas or banished to others, while organisations could be proscribed and their assets seized. Communism was a complex censure whose meanings differed for different sections of the white group. The Nationalists had fought the 1948 election on the basis of ‘oostroming’ (engulfment) and ‘swart gevaar’ (black peril). Both found expression in the communism censure and since racial equality was seen as the inevitable concomitant of British Imperial liberal capitalism, anti-communism combined both anti-black and anti-British sentiment.31 By linking communism to integration and non-racialism, the communist threat referred to real fears and interests protected by segregation and apartheid, particularly in respect of black urban migration and integration in the workplace. The struggle to preserve the privileges of the white working class and the identity of the Afrikaner nation was defended as the fight against integration and communism. Thus to oppose apartheid was to support non-racialism and communism, and tantamount to treason. As NP member of parliament, F.S. Steyn, said: If South Africa were to fall into the hands of a Black Bantu government, our economic pattern our material pattern … our whole cultural heritage … our language will be destroyed. Everything which gives form and concept to the South African state will disappear. But this propaganda is being made by Luthuli and other people in South Africa with complete freedom, in order to bring about this more revolutionary destruction of the South African state than is contemplated by the act of high treason … I say that in our time and in our country, it is the most probable and the most dangerous form of high treason to try and shift the power of the government from the present White hands to the Bantu hands.32 The English-speaking UP was also committed to an anti-communist discourse, but with a narrower, and more conventional, content. The dangers of international communism gave meaning to and justified the UP policy of ‘white leadership with justice’. Caught up in a duel for the minds of men between the free countries in the world and communist countries … therefore it will be fatal to divide the country into white nationalism and black nationalism … In short the UP policy is one of willingness to share western civilisation with all our peoples in this country, but not at the expense of civilisation already achieved by many of our people. And we are convinced that in order to maintain this standard, European leadership is essential.33 Despite the differing content of the censure, the common rejection of communism and support for white rule meant that the censure was a potentially powerful weapon in delegitimating extra-parliamentary opposition, diverting dissent from government policies and cementing a white consensus. Its strength lay in its grounding in real fears, interests and values and real historical struggles and practices. It was made plausible by the fact that communists were had consistently struggled alongside blacks. The CPSA was the only party ‘that had no colour-bar and united diverse racial and social groups’,34 and communists shared a common commitment to non-racial democracy. As Mandela noted later in the Rivonia trial: ‘For many decades communists were the only political group in South Africa to treat Africans as human beings and as their equals.’35 Initially used against ex-CPSA members and unionists, the scope of the SoCA widened to include members of Congress Alliance and liberals, thus dubbing all opposition as communist, irrespective of its nature or content. Eventually communism became the central censure of the Treason trial, as the escalation of political resistance led to the arrest of 156 people on a charge of treason in December 1956. In the Treason Trial that commenced with a year-long preparatory examination in 1957, the apartheid government sought the ‘glittering rewards’ of a show trial, hoping to portray the activities and aspirations of the Congress Alliance as communist and treasonous. The difficulties in doing this are illustrated by the fact that only 30 accused were actually charged with treason.36 This charge alleged a countrywide conspiracy in which: The accused … prepared to subvert the existing state by illegal means including the use of force and violence; and to replace [it] with a state founded on principles differing fundamentally from those on which the present state is constituted.37 This new state was alleged to be ‘a Communist state, in the form of a People’s Democracy or a People’s Republic, or some other state’.38 In the political and legal environment of the 1950s, these charges were impossible to sustain. The defence was able to limit the issue to one question – Did the Congress Alliance pursue a policy of violence? – which it was able to refute.39 In contrast to the picture of violent and communist oriented struggles, the defence successfully characterised the struggle as non-violent, non-communist and committed to liberal democracy. In the end, the judge found that, although the accused might have contemplated illegal methods, there was no policy of violence40
The Rivonia Trial: Domination, Resistance and Transformation
Introduction
Political Trials as Sites of Domination and Resistance2
Technologies of Apartheid Era Political Trials: Ideology, Relational Power and Political Censures
The Techniques of Domination and Resistance: Developing and Contesting the Censure of ‘Communism’ in the 1950s
The Censure and Criminalisation of Black Political Aspirations as ‘Communist’ in the 1950s
Domination and Resistance in the Treason Trial: 1956–1961