- 1962-11-07 (Creation)
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I am charged with inciting people to commit an offence by way of protest against the law, a law which neither I nor any of my people had any say in preparing. The law against which the protest was directed is the law which established a republic in the Union of South Africa. I am also charged with leaving the country without a passport. This court has found that I am guilty of incitement to commit an offence in opposition to this law as well as of leaving the country. But in weighing up the decision as to the sentence which is to be imposed for such an offence, the court must take into account the question of responsibility, whether it is I who is responsible or whether, in fact, a large measure of the responsibility does not lie on the shoulders of the government which promulgated that law, knowing that my people, who constitute the majority of the population of this country, were opposed to that law, and knowing further that every legal means of demonstrating that opposition had been closed to them by prior legislation, and by government administrative action.
The starting point in the case against me is the holding of the conference in Pietermaritzburg on 25 and 26 March last year , known as the All-in African Conference, which was called by a committee which had been established by leading people and spokesmen of the whole African population, to consider the situation which was being created by the promulgation of the republic in the country, without consultation with us, and without our consent. That conference unanimously rejected the decision of the government, acting only in the name of and with the agreement of the white minority of this country, to establish a republic.
It is common knowledge that the conference decided that, in place of the unilateral proclamation of a republic by the white minority of South Africans only, it would demand in the name of the African people the calling of a truly national convention representative of all South Africans, irrespective of their colour, black and white, to sit amicably round a table, to debate a new constitution for South Africa, which was in essence what the government was doing by the proclamation of a republic, and furthermore, to press on behalf of the African people, that such new constitution should differ from the constitution of the proposed South African Republic by guaranteeing democratic rights on a basis of full equality to all South Africans of adult age. The conference had assembled, knowing full well that for a long period the present National Party Government of the Union of South Africa had refused to deal with, to discuss with, or to take into consideration the views of, the overwhelming majority of the South African population on this question. And, therefore, it was not enough for this conference just to proclaim its aim, but it was also necessary for the conference to find a means of stating that aim strongly and powerfully, despite the government's unwillingness to listen.
Accordingly, it was decided that should the government fail to summon such a National Convention before 31 May 1961, all sections of the population would be called on to stage a general strike for a period of three days, both to mark our protest against the establishment of a republic, based completely on white domination over a non-white majority, and also, in a last attempt to persuade the government to heed our legitimate claims, and thus to avoid a period of increasing bitterness and hostility and discord in South Africa.
At that conference, an Action Council was elected, and I became its secretary. It was my duty, as secretary of the committee, to establish the machinery necessary for publicising the decision of this conference and for directing the campaign of propaganda, publicity, and organisation which would flow from it.
The court is aware of the fact that I am an attorney by profession and no doubt the question will be asked why I, as an attorney who is bound, as part of my code of behaviour, to observe the laws of the country and to respect its customs and traditions, should willingly lend myself to a campaign whose ultimate aim was to bring about a strike against the proclaimed policy of the government of this country.
In order that the court shall understand the frame of mind which leads me to action such as this, it is necessary for me to explain the background to my own political development and to try to make this court aware of the factors which influenced me in deciding to act as I did.
Many years ago, when I was a boy brought up in my village in the Transkei, I listened to the elders of the tribe telling stories about the good old days, before the arrival of the white man. Then our people lived peacefully, under the democratic rule of their kings and their amapakati, and moved freely and confidently up and down the country without let or hindrance. Then the country was ours, in our own name and right. We occupied the land, the forests, the rivers; we extracted the mineral wealth beneath the soil and all the riches of this beautiful country. We set up and operated our own government, we controlled our own armies and we organised our own trade and commerce. The elders would tell tales of the wars fought by our ancestors in defence of the fatherland, as well as the acts of valour performed by generals and soldiers during those epic days. The names of Dingane and Bambata, among the Zulus, of Hintsa, Makana, Ndlambe of the AmaXhosa, of Sekhukhuni and others in the north, were mentioned as the pride and glory of the entire African nation.
I hoped and vowed then that, among the treasures that life might offer me, would be the opportunity to serve my people and make my own humble contribution to their freedom struggles.
The structure and organisation of early African societies in this country fascinated me very much and greatly influenced the evolution of my political outlook. The land, then the main means of production, belonged to the whole tribe, and there was no individual ownership whatsoever. There were no classes, no rich or poor and no exploitation of man by man. All men were free and equal and this was the foundation of government. Recognition of this general principle found expression in the constitution of the council, variously called Imbizo, or Pitso, or Kgotla, which governs the affairs of the tribe. The council was so completely democratic that all members of the tribe could participate in its deliberations. Chief and subject, warrior and medicine man, all took part and endeavoured to influence its decisions. It was so weighty and influential a body that no step of any importance could ever be taken by the tribe without reference to It.
There was much in such a society that was primitive and insecure and it certainly could never measure up to the demands of the present epoch. But in such a society are contained the seeds of revolutionary democracy in which none will be held in slavery or servitude, and in which poverty, want, and insecurity shall be no more. This is the inspiration which, even today, inspires me and my colleagues in our political struggle.
When I reached adult stature, I became a member of the African National Congress. That was in 1944 and I have followed its policy, supported it, and believed in its aims and outlook for eighteen years. Its policy was one which appealed to my deepest inner convictions. It sought for the unity of all Africans, overriding tribal differences among them. It sought the acquisition of political power for Africans in the land of their birth. The African National Congress further believed that all people, irrespective of the national groups to which they may belong, and irrespective of the colour of their skins, all people whose home is South Africa and who believe in the principles of democracy and of equality of men, should be treated as Africans; that all South Africans are entitled to live a free life on the basis of fullest equality of the rights and opportunities in every field, of full democratic rights, with a direct say in the affairs of the government.
These principles have been embodied in the Freedom Charter, which none in this country will dare challenge for its place as the most democratic programme of political principles ever enunciated by any political party or organisation in this country. It was for me a matter of joy and pride to be a member of an organisation which has proclaimed so democratic a policy and which campaigned for it militantly and fearlessly. The principles enumerated in the Charter have not been those of African people alone, for whom the African National Congress has always been the spokesman. Those principles have been adopted as well by the Indian people and the South African Indian Congress; by a section of the Coloured people, through the South African Coloured People's Congress, and also by a farsighted, forward-looking section of the European population, whose organisation in days gone by was the South African Congress of Democrats. All these organisations, like the African National Congress, supported completely the demand for one man, one vote.
Right at the beginning of my career as an attorney I encountered difficulties imposed on me because of the colour of my skin, and further difficulty surrounding me because of my membership and support of the African National Congress. I discovered, for example, that, unlike a white attorney, I could not occupy business premises in the city unless I first obtained ministerial consent in terms of the Urban Areas Act. I applied for that consent, but it was never granted. Although I subsequently obtained a permit, for a limited period, in terms of the Group Areas Act, that soon expired, and the authorities refused to renew it. They insisted that my partner, Oliver Tambo, and I should leave the city and practise in an African location at the back of beyond, miles away from where clients could reach us during working hours. This was tantamount to asking us to abandon our legal practice, to give up the legal service of our people, for which we had spent many years training. No attorney worth his salt will agree easily to do so. For some years, therefore, we continued to occupy premises in the city, illegally. The threat of prosecution and ejection hung menacingly over us throughout that period. It was an act of defiance of the law. We were aware that it was, but, nevertheless, that act had been forced on us against our wishes, and we could do no other than to choose between compliance with the law and compliance with our consciences.
In the courts where we practised we were treated courteously by many officials but we were very often discriminated against by some and treated with resentment and hostility by others. We were constantly aware that no matter how well, how correctly, how adequately we pursued our career of law, we could not become a prosecutor, or a magistrate, or a judge. We became aware of the fact that as attorneys we often dealt with officials whose competence and attainments were no higher than ours, but whose superior position was maintained and protected by a white skin.
I regarded it as a duty which I owed, not just to my people, but also to my profession, to the practice of law, and to justice for all mankind, to cry out against this discrimination, which is essentially unjust and opposed to the whole basis of the attitude towards justice which is part of the tradition of legal training in this country. I believed that in taking up a stand against this injustice I was upholding the dignity of what should be an honourable profession.
Nine years ago the Transvaal Law Society applied to the Supreme Court to have my name struck off the roll because of the part I had played in a campaign initiated by the African National Congress, a campaign for the Defiance of Unjust Laws. During the campaign more than eight thousand of the most advanced and farseeing of my people deliberately courted arrest and imprisonment by breaking specified laws, which we regarded then, as we still do now, as unjust and repressive. In the opinion of the Law Society, my activity in connection with that campaign did not conform to the standards of conduct expected from members of our honourable profession, but on this occasion the Supreme Court held that I had been within my rights as an attorney, that there was nothing dishonourable in an attorney identifying himself with his people in their struggle for political rights, even if his activities should infringe upon the laws of the country; the Supreme Court rejected the application of the Law Society.
It would not be expected that with such a verdict in my favour I should discontinue my political activities. But Your Worship may well wonder why it is that I should find it necessary to persist with such conduct, which has not only brought me the difficulties I have referred to, but which has resulted in my spending some four years on a charge before the courts of high treason, of which I was subsequently acquitted, and of many months in jail on no charge at all, merely on the basis of the government's dislike of my views and of my activities during the whole period of the Emergency of 1960.
Your Worship, I would say that the whole life of any thinking African in this country drives him continuously to a conflict between his conscience on the one hand and the law on the other. This is not a conflict peculiar to this country. The conflict arises for men of conscience, for men who think and who feel deeply in every country. Recently in Britain, a peer of the realm, Earl Russell, probably the most respected philosopher of the Western world, was sentenced, convicted for precisely the type of activities for which I stand before you today, for following his conscience in defiance of the law, as a protest against a nuclear weapons policy being followed by his own government. For him, his duty to the public, his belief in the morality of the essential rightness of the cause for which he stood, rose superior to this high respect for the law. He could not do other than to oppose the law and to suffer the consequences for it. Nor can I. Nor can many Africans in this country. The law as it is applied, the law as it has been developed over a long period of history, and especially the law as it is written and designed by the Nationalist government, is a law which, in our view, is immoral, unjust, and intolerable. Our consciences dictate that we must protest against it, that we must oppose it, and that we must attempt to alter it.
Always we have been conscious of our obligations as citizens to avoid breaches of the law, where such breaches can be avoided, to prevent a clash between the authorities and our people, where such clash can be prevented, but nevertheless, we have been driven to speak up for what we believe is right, and to work for it and to try and bring about changes which will satisfy our human conscience.Throughout its fifty years of existence the African National Congress, for instance, has done everything possible to bring its demands to the attention of successive South African governments. It has sought at all times peaceful solutions for all the country's ills and problems. The history of the ANC is filled with instances where deputations were sent to South African governments either on specific issues or on the general political demands of our people. I do not wish to burden Your Worship by enunciating the occasions when such deputations were sent; all that I wish to indicate at this stage is that, in addition to the efforts made by former presidents of the ANC, when Mr. Strijdom became Prime Minister of this country, my leader, Chief A J Luthuli, then President of our organisation, made yet another effort to persuade this government to consider and to heed our point of view. In his letter to the Prime Minister at the time, Chief Luthuli exhaustively reviewed the country's relations and its dangers, and expressed the view that a meeting between the government and African leaders had become necessary and urgent.
This statesmanlike and correct behaviour on the part of the leader of the majority of the South African population did not find an appropriate answer from the leader of the South African government. The standard of behaviour of the South African government towards my people and its aspirations has not always been what it should have been, and is not always the standard which is to be expected in serious high-level dealings between civilised peoples. Chief Luthuli's letter was not even favoured with the courtesy of an acknowledgement from the Prime Minister's office.
This experience was repeated after the Pietermaritzburg conference, when I, as Secretary of the Action Council, elected at that conference, addressed a letter to the Prime Minister, Dr Verwoerd, informing him of the resolution which had been taken, and calling on him to initiate steps for the convening of such a national convention as we suggested, before the date specified in the resolution. In a civilised country one would be outraged by the failure of the head of government even to acknowledge receipt of a letter, or to consider such a reasonable request put to him by a broadly representative collection of important personalities and leaders of the most important community of the country. Once again, government standards in dealing with my people fell below what the civilised world would expect. No reply, no response whatsoever, was received to our letter, no indication was even given that it had received any consideration whatsoever. Here we, the African people, and especially we of the National Action Council, who had been entrusted with the tremendous responsibility of safeguarding the interests of the African people, were faced with this conflict between the law and our conscience. In the face of the complete failure of the government to heed, to consider, or even to respond to our seriously proposed objections and our solutions to the forthcoming republic, what were we to do? Were we to allow the law which states that you shall not commit an offence by way of protest, to take its course and thus betray our conscience and our belief? Were we to uphold our conscience and our beliefs to strive for what we believe is right, not just for us, but for all the people who live in this country, both the present generation and for generations to come, and thus transgress against the law? This is the dilemma which faced us, and in such a dilemma, men of honesty, men of purpose, and men of public morality and of conscience can only have one answer. They must follow the dictates of their conscience irrespective of the consequences which might overtake them for it. We of the Action Council, and I particularly as Secretary, followed my conscience.
If I had my time over I would do the same again, so would any man who dares call himself a man. We went ahead with our campaign as instructed by the conference and in accordance with its decisions.