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Nelson Mandela: Lessons for Lawyers – Professor Urfan Khaliq

9 December 2013

Nelson Mandela’s life is an inspiration for all lawyers and leaves a legacy for the development of the law.  As is well-known Mandela studied law at University and practiced as a lawyer for a number of years.  The ANC which he joined in the early 1950s by the start of the 1960s had evolved from a party committed to non-violence to one which was willing to use force to achieve its objectives; hence the accusation that Mandela was in the past a terrorist.  The Rivonia trial at which was he convicted in 1964 is something that all law students and indeed lawyers should refer to.  The Rivonia Trial was a master class in the abuse of the rule of law and due process – so much so that one can only recall the absurdity of it in light of Kafka’s The Trial and perhaps Blackadder’s trial by General Melchett for the former’s killing of Melchett’s favourite carrier-pigeon in Blackadder IV.  There is a quite fabulous and very readable account of the Rivonia Trial by Joel Joffee which has been published in recent years.  It is entitled The State vs. Nelson Mandela: The Trial That Changed South Africa; it is certainly worth a read if you can get your hands on it.  Incidentally among those on trial with Mandela at Rivonia was Bob Hepple – a white South African who was not convicted – and who went on to become one of the great non-discrimination lawyers working in this country and a towering and inspirational academic who has dedicated his life to fighting injustice.  Bob Hepple became Professor of Law at both University College, London and Cambridge University.

But Mandela’s activities prior to his imprisonment raise an interesting legal question.  Black South Africans were seeking emancipation from white minority rule.  Would this not be self-determination as we understand that term in international law?  Almost certainly it would be but does international law permit the use of force to achieve self-determination?  History is replete with examples where, in the colonial context, force was used to achieve independence and the newly created entity was recognised as a State – but that does not answer the question.  Such recognition simply acknowledges the reality of the situation.  But in post-apartheid South Africa there was no new State, only a new regime.  The use of force by the ANC raises another interesting issue.  Even now (6 December 2013) Lord (Norman) Tebbitt, one of the Conservative Party’s grandees, was on The World At One on Radio Four arguing that Mandela was a terrorist.  Terrorism is defined by domestic legal systems not international law simply because at the inter-State level there is little agreement on which means are justifiable and even less so as to which causes are.  Of course, it should not be forgotten that the Thatcher Government refused to impose sanctions against apartheid South Africa, on several occasions using its veto in the UN Security Council, on the grounds that it would hurt the very people (black South Africans) that they wanted to help.  They often failed to mention the very lucrative trade relations British institutions, such as Barclays Bank, were enjoying there.  But there is something, even if not a lot, that can be said for this approach retrospectively; in the 1980s we were still in the era of ‘blunt’ sanctions and not ‘smart’ sanctions, which are more targeted to the regime and not the population at large.  The Conservative party’s (then) policy towards South Africa was very much on the wrong side of history and completely counter to its approach to Ian Smith’s regime in Rhodesia.  Ian Smith in 1965 had unilaterally declared independence (UDI) from the United Kingdom for his racist white supremist regime – which all British governments strongly opposed.  Smith and his regime were eventually forcibly overthrown and in 1980 Robert Mugabe was elected President of the newly independent State of Zimbabwe.  Mugabe, by contrast with Mandela, somewhat ironically is rarely thought of as a terrorist for his activities prior to Zimbabwean independence.

There is another interesting comparison to be drawn between Mugabe and Mandela which comes back to international law.  Mugabe of course won the 1980 elections in Zimbabwe.  Like many African and Asian leaders who are rightly or wrongly credited with ‘freeing’ and sometimes even ‘fathering’ the nation, Mugabe has stayed on.  Nyerere, Kenyatta, Kuanda, Banda and Mobutu, the list is a long and notorious one.  Mandela had the political capital within South Africa and probably around the World, to stay on if he wanted after his term as President formally ended in 1999.  But he walked away, elections were held and the constitution respected.  While this is not an example of the ‘right to democratic governance in international law’ it has been observed more than once that this was one of the first times, if not the first time, that a ‘post-independence’ African leader allowed and respected a fully democratic transition.  It certainly did help, however, to strengthen regional claims to democracy in Africa and, further, highlights that ‘Mandela the Man’ lived up to the ‘Mandela Legend’.  Another illustration of the man living up to, if not exceeding, the legend was the setting up of the South African Truth and Reconciliation Commissions.  Retribution through the courts and ‘victor’s justice’ was not on the agenda; reconciliation, forgiveness and tolerance were.  The South African Truth and Reconciliation Commissions now serve as a model for how post-conflict societies may seek to move on.  As important as international courts and tribunals are for punishing certain crimes, the utility of such commissions in healing States to deal with the past cannot be underestimated.  Sometimes for the sake of the society in question, such commissions are more preferable than the judicialised search for ‘justice’.

In international affairs Mandela was always on the side of the rule of law.  In a speech in January 2003, two months before the US led invasion of Iraq, Mandela said military action against Saddam Hussein’s regime without UN Security Council approval would be unlawful; and he savaged both George W. Bush and Tony Blair for ‘undermining the United Nations’.  He was the one global statesman who had substantial moral authority when opposing the coalition and he went further when he referred to the then US President as a ‘small man’ who has ‘no foresight’.  On the invasion of Afghanistan he reminded the Bush administration that the ‘labelling of Osama bin Laden as the terrorist responsible for those acts (the 11 September 2001 attacks) before he had been tried and convicted could also be seen as undermining some of the basic tenets of the rule of law.’  In a 2002 statement, Mandela reiterated his opposition to acts of terror, and how appalled he had been by the barbarism of the September 2001 attacks, but argued that those responsible for bringing down the Twin Towers must be ‘apprehended and brought to trial without inflicting suffering on innocent people’.

Staying in the realms of international law, it is now often forgotten that South Africa was one of the eight abstaining nations (Saudi Arabia and the USSR and its client States were the others) when in 1948 the Universal Declaration of Human Rights was adopted.  The apartheid regime was just getting established at the time but over the coming years as the decolonisation process started to gather steam, South Africa found itself increasingly ostracised by large parts of Asia and Africa.  One of the fundamental norms of international law (jus cogens) is now the crime of apartheid.  The Race Convention from 1965 is the first of the major United Nations human rights conventions.  Both of these developments in international law were driven by the (then) newly independent nations of Africa and Asia and were a direct response to the apartheid regime.  The importance of neither of these norms can be considered to have been consigned to history.  The European Journal of International Law recently contained (2013, Vol. 24, Part 3) a fabulous exchange of views on whether apartheid is an international crime (which everyone agrees it is) and then whether it is being practised by Israel in the Palestinian territories – on which it is easiest to say there is a healthy difference of opinions.  Lest it be forgotten, Mandela was a staunch and loyal supporter of the Palestinian claim for self- determination.  The evil of apartheid, which Mandela did so much to dismantle, has at least had some positive outcomes.