CRITICAL DEVELOPMENTS IN NAMIBIA THURSDAY, FEBRUARY 21, 1974 HOUSE OF REPRESENTATIVES, The subcommittee met at 2 p.m., in room 2172, Rayburn House Office Building, Hon. Charles C. Diggs, Jr. (chairman of the subcommittee) presiding. Mr. Diccs. The subcommittee will come to order. Today we have the first of two hearings on the question of Namibia and the U.S. Government policy toward this issue. We have three private witnesses: Mrs. Elizabeth Landis, who is vice president of the American Committee on Africa, and who has been a consultant to the United Nations Council for Namibia; Mr. Douglas P. Wachholz of the Lawyers' Committee for Civil Rights Under Law; and Mr. Theo-Ben Gurirab, the representative in the United States of the South-West African People's Organization of Namibia (SWAPO). The question of Namibia, or South-West Africa as it was previously known, is one which needs to be known better internationally, and especially in the United States. Following the unequivocal advisory opinion of June 1971 by the International Court of Justice affirming the General Assembly's 1966 action in General Assembly Resolution 2145 terminating the mandate, it is now clearly established that South Africa's occupation of the international territory is illegal, and that it is under an obligation to withdraw. All other States also have legal obligations to recognize the invalidity of the South African administration and to refrain from any action lending support or assistance to the illegal administration. The U.S. Government, which supported General Assembly Resolution 2145 and also submitted a statement to the ICJ on the illegality of the South African administration in Namibia, has accepted the conclusions of the advisory opinion. The United States has made commendable statements on the necessity of independence and self-determination for Namibia. However, it has consistently failed to support the United Nations Council for Namibia, created by the General Assembly to administer the territory. It has also failed to produce a single proposal for implementing the advisory opinion, and has opposed all those presented until now. It is therefore important that there be greater understanding of the Namibian issue among concerned Americans, and that the U.S. Government produce meaningful proposals for implementing the opinion, or at least, supporting those made by others. There has been a disappointing lack of real leadership on this important issue. The question has been highlighted by the blatant violations of basic human rights by the South African occupation regime, and by acts of barbarity committed against the Namibians which cannot be allowed to pass unnoticed. People have been systematically arrested without trial; there is a "state of emergency" canceling all communications with the outside world and all basic human rights under law for the people of the northern region. This "state of emergency" has been in force for 2 years and shows no sign of being lifted. Police raids on the workers' compounds to enforce unconscionable laws against freedom of movement have become much more frequent than in the past. Members of the political organizations have been arrested and victimized for their attempts to organize opposition to the occupation. Public floggings have been held of men and women in the northern areas who oppose the occupation regime, and many received severe wounds in the process. These floggings were illegal even in terms of the law imposed on Namibia by South Africa. Most recently of all, there have been widespread arrests of all those suspected of opposing the occupation, and the entire executive committee of SWAPO, which is legal in terms of the administration's own law, has been arrested. This sudden move to repress all peaceful opposition represents a serious deterioration of the situation in Namibia. We have therefore called this special hearing of the subcommittee to review U.S. Government policy in light of the serious situation in the occupied territory. Government witnesses at our second hearing will be from the Department of State and Securities and Exchange Commission. We will first hear from Mr. Wachholz who will enlighten us on the recent critical developments in Namibia, and then we will hear Namibia's views of these developments and finally, Mrs. Landis will place the current situation into perspective regarding the legal and political background of Namibia and the position of the international community and that of the United States. Following those statements, we will go into questions. I am delighted to welcome once again, Douglas P. Wachholz, attorney for the Lawyers' Committee for Civil Rights. STATEMENT OF DOUGLAS P. WACHHOLZ, ATTORNEY, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW Born: July 31, 1944, Iola, Wis. Education: B.A., Wesleyan University, Middletown, Conn. (1968). Special Student in Latin American Studies, Yale University, New Haven, Conn. (1967-68). J.D., University of Virginia School of Law, Charlottesville, Va. (1971). Certificate, Faculte Internationale pour l'Enseignement du Droit Compare, Strasbourg, France (1971 and 1972). Employment: Law Clerk to Judge Robert R. Merhige, Jr., U.S. District Court for the Eastern District of Virginia, Richmond, Va. (1971-72). Coudert Brothers, New York, N.Y. (1972). Staff Director, Africa Legal Assistance Project, Lawyers' Committee for Civil Rights Under Law, Washington, D.C. (present). Other activities: American Society of International Law (member "International Human Rights Law and its Implementation" study panel). Mr. WACHHOLZ. Recent developments in the international territory of Namibia are a matter of great concern to the Lawyers' Committee for Civil Rights Under Law. Let me briefly describe the Lawyers' Committee. It was organized on June 21, 1963, following a conference of lawyers called at the White House by President John F. Kennedy. It is a nonprofit private corporation whose principal purpose is to involve private lawyers throughout the country in the struggle to assure all citizens of their civil rights. The membership of the committee includes 11 past presidents of the American Bar Association and three former Attorneys General. The national office of the Lawyers' Committee in Washington, D.C. employs 12 full-time staff attorneys and there are full-time lawyers working in 11 different cities in this country. The committee's work has earned the support and encouragement of both Presidents Johnson and Nixon. In November 1967, President Johnson wrote to the cochairman: You and the members of the Lawyers' Committee throughout the Nation are to be commended for the leadership you have given in the past to assure civil rights under law. The Nation looks forward to your continued leadership. In May 1969, President Nixon wrote: The committee's efforts in protecting citizens who might otherwise suffer the loss of their constitutional rights, and in developing new methods to solve the urban problems that face our Nation, have my continuing support and admiration. The U.S. Department of State has endorsed and encouraged the committee's activities with respect to southern Africa. During the past 7 years the Lawyers' Committee has provided legal assistance to victims of racial repression in Namibia. This assistance has taken the form of the retention and payment of lawyers to act on behalf of black defendants in several political trials of Namibians whose internationally-recognized human rights were at stake. Our involvement in human rights questions in Namibia began in 1967 when the committee provided financial assistance to Joel Carlson, a South African attorney, to help defend 37 Namibians prosecuted under the Terrorism Act, which allows unlimited pretrial detention for purposes of interrogation, shifts to the defendant the burden of proving innocence beyond a reasonable doubt, and which South Africa unlawfully applies to Namibia. Mr. Carlson came to this country that year to get support for the defendants in the trial from U.S. policymakers and the American legal community. He met with the Lawyers' Committee which found the case of 37 Namibians particularly deserving of its attention and support. The committee undertook to obtain financial support to pay for the legal costs of the defense. Similarly, in 1968 the committee assisted Carlson in a suit on behalf of a 68-year-old Namibian detainee who charged that he was tortured by the security police. The state settled the case with a payment of 3,000 rand (about $4,000). Since that time the committee has cooperated with Joel Carlson and other South African and Namibian lawyers in attempting to secure the human rights of the people of that territory. The Lawyers' Committee has attempted to keep well-informed on the status of the rule of law in Namibia by travel to the territory, correspondence on legal matters with attorneys in Windhoek, closely following the international and South African press, and keeping in touch with public and private international organizations, with other American organizations (secular and religious), with the government and with many interested and informed individuals. It is through these contacts that we have learned of some of the actions taken by the South African Government against black political spokesmen and others who oppose the policies and repression in Namibia. These actions have included (1) mass arrests of persons living in the black ghetto outside of Windhoek; (2) systematic persecution of opposition political leaders in all parts of Namibia by South African authorities and their surrogates; (3) public floggings and other violent acts perpetrated by South African police and bantustan officials on opposition political spokesmen, church officials and others; and (4) general disregard for the rule of law in the arrest and detention of persons by police. These actions represent a flagrant violation of international law by the Government of South Africa. On March 7, 1973, South African Police raided Katatura, the black township (or ghetto) outside of Windhoek, where its inhabitants had gathered to demonstrate against Prime Minister Vorster's proposed advisory council for South-West Africa. The advisory council purported to represent black political opinion in Namibia; however, the body was boycotted by black Namibian political leaders. The police arrested 118 persons. Most were charged with failure to have passes in their possession. On March 30, five of those arrested were sentenced to 3 years in prison and others may have been carried back to the Ovambo bantustan. It is not known why the 5 received such a sentence and what happened to the other 113. On May 8, 1973, four Ovambo opposition political leaders, Johannes Nangutuuala, John Otto, Andreas Nunkwawo, and Jimmy Ampala were arrested under the so-called "Emergency Regulations" (Proclamation R. 17 (1972)). I have with me a copy of these regulations, and I would ask that the committee receive it in evidence. Mr. DIGGS. Without objection, it will be included in the record.1 Mr. WACHHOLZ. These regulations are applicable only to Ovamboland. The men were charged with two counts of holding an illegal meeting. Nangutuuala and Nuukwawo are leaders of the Democratic Cooperative Development Party; Otto and Ampala are executives of the South-West Africa Peoples Organization. better known as SWAPO. They had held a rally to demonstrate their opposition to forcing the status of a so-called self-governing homeland on the Ovambo people. The Lawyers' Committee, upon learning of the arrests, instructed cooperating attorneys in Windhoek to defend the four Ovambo leaders. On August 24, 1973, after a long and difficult series of legal skirmishes, the Supreme Court of South-West Africa quashed the indictments. Shortly thereafter new charges were filed against the four by the South African authorities. On September 18, 1973, the magistrate found Nangutuuala not guilty of having made a statement intended or likely to undermine or interfere with the authority of South Africa or the Ovambo bantustan government. Two days later, on September 20, Nangutuuala, Otto, and Nuukwawo were convicted of holding an illegal meeting. Mr. Ampala was found not guilty of the charges. Nangutuala was sentenced to a fine of 400 rand ($560) or 2 years in jail; Otto received a 200 rand ($280) fine or 1 year in jail; and Nuukwawo got a 100 rand ($140) fine or 6 months in jail. The Lawyers' Committee does not know whether the three paid the fines. We did learn from the South African press that after their 1 See appendix at p. 81. sentencing in the case at least Nangutuuala and Nuukwawo were held incommunicado without charges by South African Police for approximately 1 month. What occurred with regard to John Otto is not known. On October 24 the police turned Nangutuuala and Nuukwawo over to Chief Philemon Elifas, the Chief Minister of the Ovambo "bantustan" and a supporter of the application of apartheid to Namibia. Nangutuuala was immediately accused by Chief Elifas of criticizing the Commissioner-General of South-West Africa and summarily stripped naked in public and given 21 lashes after which he had to be hospitalized. Mr. Nangutuuala was not allowed to answer the charge against him and there was no semblance of legal procedures prior to his being publicly flogged. On that same day Mr. Nuukwawo sought the assistance of the Anglican Bishop Suffragen Richard Wood by a telephone call to Windhoek (over 300 miles away) when he learned that he was to appear before Chief Elifas and other "bantustan" authorities the next day. Reverend Wood, together with Lutheran Bishop Leonard Auala and Thomas Kamati, applied to the Supreme Court in Windhoek for an interdict (what lawyers in the United States would call a temporary restraining order) to prevent the "bantustan" authorities from publicly flogging Nuukwawo. The court granted the interdict. One hour before the interdict was granted, however, Nuukwawo had been given 16 lashes on his naked body with a palm rib. He was told that he was being punished for giving information to newspapers, for belonging to SWAPO and for distributing pamphlets. He was not given an opportunity to rebut the charges. After the beating he was taken to a hospital. Two other SWAPO members, Matheus Joseph and Keshi Nathaniel were also handed over to "bantustan" authorities by South African Police on October 31, 1973 after being held incommunicado for over 2 months under proclamation R. 17 (1972). Mr. Joseph was charged before the "bantustan" court for engaging in certain political activities and he was sentenced to a fine of 50 rand ($60) and 20 lashes. It is unknown (1) whether the sentence was carried out, and (2) what the fate of Mr. Nathaniel was. The public floggings by Ovambo "bantustan" authorities elicited international response, and brought protest from inside South Africa and Namibia from both white and black leaders. Mr. Brian O'Linn, a Windhoek advocate and an official of the United Party of South-West Africa, was reported in the Windhoek Advertiser on October 26, 1973 to have stated that the floggings demonstrated a "total negation of judicial principles." He said that "*** political opponents were not charged before the Courts but were being detained by the police and then passed on to the headmen for punishment in a primitive manner and summarily.” On application of Bishop Wood and Bishop Auala the Supreme Court on November 19, 1973 issued a temporary interdict preventing certain "bantustan" authorities from flogging persons under certain conditions. I have a copy of the court's order in this case, and I would ask that this be included in the record. Mr. DIGGS. Without objection, it is so ordered.2 2 See appendix at p. 89. |