Foreign Relations of the United States, 1964–1968, Volume XXIV, Africa

655. Telegram From the Department of State to the Embassy in South Africa¹

Washington, March 28, 1968, 2336Z.

138195. Terrorism Act Trials. Refs: State 85072,² 113548,³ 113604,⁴ 115154,⁵ 130909 (notal).⁶

1. As consequence latest Security Council resolution SWA,⁷ USG called upon to make further effort re Terrorism Act and trials. Pursuant resolution UK recently instructed Embassy Cape Town make démarche its behalf. Accordingly, Embassy requested deliver aide-memoire (para 4) at appropriate level Dept ForAffrs.

2. If Embassy does not have texts accompanying speeches Goldberg and Abram, it may in its discretion arrange subsequent delivery texts (copies by unclassified airpouch Thursday March 28 Registry No. 1273812 via Pretoria addressed Hooper) or delay delivery aide-memoire for their arrival.

3. Suggest that in oral presentation stress be laid on (1) humanitarian concern USG as indicated paragraphs concerning SW Africans particularly affected by Terrorism Act; (2) distinction common to all aide-memoires between USG general long-run position on SAG legal rights and duties (in short, 2145 v. SAG views) and USG special concern legislation such as Terrorism Act exceeds what is necessary or permissible on any view of where responsibility lies for maintenance of law and order; (3) degree to which continued imprisonment of SW Africans under Terrorism Act creates obstacle to efforts from any quarter toward moderation in treatment this and other issues existing or arising between SAG and members international community.

4. Text of Aide-Memoire: Reference is made to aide-memoires of December 16, 1967 and February 10, 1968 to which the replies of the Government of South Africa are awaited with interest.

The United States Government transmits to the Government of South Africa with the present aide-memoire copies of statements made by Ambassador Goldberg on March 14, 1968 and February 16, 1968⁸ in the course of consideration by the United Nations Security Council of the question of South West Africa, and especially the trials, convictions and sentences flowing from charges under the Terrorism Act (No. 83 of 1967), together with a statement made on February 9, 1968 by the United States Representative, Mr. Morris Abram, in the United Nations Human Rights Commission on the same matter. These statements reaffirm positions taken earlier by the United States Government and explain the basis of its support of the most recent resolution of the United Nations Security Council, No. 246 of 1968 (March 14, 1968).

The United States Government has considered carefully the information and views presented by the Government of South Africa in its reply to the Secretary General of the United Nations, dated February 15, 1968 and published as United Nations Document A/7045/Add.9. The United States Government cannot consider that reply as a sufficient response to the various resolutions of the United Nations Organs, supported by the United States Government, or the aide-memoires referred to above. Since the Terrorism Act stands for all to read, the reply cannot, and does not seek to deny that the Act includes the principal elements (retroactivity, indefinite detention, conditions of detention, presumptions, definitions, place of trial, etc.) toward which attention has been directed in previous aide-memoires and in debates at the United Nations. Rather, the reply argues that the provisions are reasonable, especially since the threat of “terrorism” requires measures to “supplement the traditional rules and procedures.” Yet, the reply also states that “the main charge against the accused in the trial instituted in 1967 under the Terrorism Act comprised activities such as conspiracy to murder, armed robbery, arson, possession of firearms, firing on the police and violently resisting arrest—all with the object of endangering law and order.”

In the view of the Government of the United States, a highly developed system of law like South Africa’s suffices, without “supplement,” to deal with such offenses. The United States Government considers that this view finds support in the debates in Parliament when the Terrorism Act was considered, the judgment and statements of Judge Ludorf concerning sentencing in State v. Eliaser Tuhadeleni et al. and available reporting on the matter. The United States Government has especially taken account of ordinary laws, including the common law, normally related to the protection of life and property in the Territory. It has sought also to take account of the efficacy of the Courts and the capabilities of the authorities in illegal occupation of South West Africa. On the basis of all the available evidence, it is forced to conclude that provisions such as those of the Terrorism Act are redundant as well as inadmissible, and that attempts to justify them as matters of dire necessity fail on two grounds: (a) the facts do not show that the Courts and authorities require such extraordinary provisions, and (b) those provisions are themselves a contradiction of the pursuit of law and order, in that they violate the rights of the people of South West Africa and depart from civilized legal process as it has evolved western and other legal traditions.

Of continuing interest and urgent importance is the question of the well-being of South West Africans particularly affected by the Terrorism Act and other comparable legislation.

There are those individuals who have been released. From the scant information available in the public press it would appear that Jason D. Mutumbulua, Johannes G. Otto and Immanuel G.N. Machuirili have been released and that Gabriel Mbindi and a number of others who have been detained in police custody as potential witnesses or accused may also have been released. The United States Government requests such facts as the Government of South Africa may have concerning the welfare and whereabouts of these persons. The United States Government would welcome any suggestions as to how best contact may be established with such persons, so that a proper humanitarian response—official and unofficial—may be forthcoming.

As to those who are now serving sentences under the Terrorism Act, the United States Government specifically requests of the Government of South Africa that, above and beyond such restricted rights to visit as may currently be accorded under the prison regulations, cooperation be extended to the United States and other interested parties so that arrangements may be made for visits, especially by persons of legal, medical, educational and religious qualification, as may be appropriate to each individual case.

As to those who remain under detention under the Terrorism Act or similar legislation, the United States Government renews requests made in prior aide-memoires, adding of course, its special concern that there should be no further trials of inhabitants of South West Africa under such legislation. In this connection it has particularly in mind a recent announcement by the Attorney General of the Transvaal of another such trial.

The United States Government continues to urge upon the Government of South Africa the wisdom of reconsidering its position in the matter of the application of legislation such as the Terrorism Act in the context of the entire problem of South West Africa. Noting the dangerous division between the Government of South Africa and the international community, the United States Government invites the Government of South Africa at this time to seek to preserve a chance for easing this division. It urges that the Government of South Africa suspend implementation of unilaterally conceived plans, such as have been elaborated in the Report of the Odendaal Commission, and come to the conference table to reach agreement on appropriate courses of action. In particular, the United States Government believes that an atmosphere conducive to constructive consideration of the complex problems of South West Africa can best be achieved if the Government of South Africa would cease the application of South West Africa of legislation such as the Terrorism Act. This would of course entail an end to the detention, trial or imprisonment of South West Africans pursuant to that Act.

The United States Government would appreciate a direct reply from the Government of South Africa to the detailed observations, recommendations and requests embodied in the present and past aide-memoires on this matter. End of Aide-Memoire.

5. For London and USUN: Embassy and USUN may inform UK this latest démarche and show them text on strictly confidential basis when advised delivery by Embassy Cape Town.⁹

Rusk

1. Source: Department of State, Central Files, POL 29 SW AFR. Confidential. Drafted by Runyon; cleared by Clark, Assistant Legal Adviser for United Nations Affairs Herbert K. Reis, Brown of UNP, and Francis J. Seider of U; and approved by Deputy Assistant Secretary for African Affairs Thomas H.E. Quimby. Sent to Cape Town, and repeated to London, Pretoria, Johannesburg, and USUN.
2. Telegram 85072 to Cape Town, December 15, 1967, transmitted the text of an aide-memoire. (Ibid., POL 29 SW AFR/UN)
3. Telegram 113548 to Cape Town, February 10, transmitted the text of an aide-memoire; see footnote 2, Document 653.
4. Document 653.
5. Dated February 14. (Department of State, Central Files, POL 29 SW AFR)
6. Dated March 15. (Ibid.)
7. Security Council Resolution 246 adopted unanimously on March 14 demanded that South Africa “forthwith release and repatriate the South-West Africans concerned.” For text, see Department of State Bulletin, April 8, 1968, p. 477.
8. For text of Goldberg’s statements on February 16 and March 14, see ibid., pp. 474–477.
9. In telegram 938 from Cape Town, April 2, Rountree reported that he delivered the aide-memoire to Foreign Secretary Fourie that morning. Fourie said he would have to study the document, but emphasized that the passages in it stating or implying the illegality of the South African presence in South West Africa could not and never would be accepted by the South African Government. (Department of State, Central Files, POL 29 SW AFR)