Newsletter 02/10

Nelson Mandela freed, twenty years ago

Twenty years ago, on 11 February 1990, Nelson Mandela regained his freedom. Since then, he has been the instigator of many major innovations in the field of democratic institutions.

In France, as a lawyer, he received in 1985 an international human rights prize.

The transition measures applied in the postapartheid period were informed by his years of legal experience and culture as a lawyer, supplemented by reading, research and discussion with his fellow detainees during his long years of imprisonment, many of them spent on Robben Island.

The background to Nelson Mandela's legal training

After graduating from law school at Johannesburg's Witwatersrand University, he and Oliver Tambo went on to set up the first black legal practice in South Africa in 1952. He relied on all the procedural techniques of common law, which remained in force throughout the apartheid regime established in 1948, to defend the rights of clients prosecuted under the racial segregation laws. His recourse to habeas corpus (although increasingly restricted) during police investigations, his use of cross-examination and his incisive courtroom speaking were his strongest weapons. These same techniques were used with remarkable skill and courage when he himself was arrested and brought to trial.

The concept of denying the legitimacy of the courts was foreign to him even though, outside the courts, his commitment as a citizen was forcibly expressed.

Mandela the lawyer faced his judges, in office under apartheid, with the laws inherited from Britain, the former colonial power – laws, particularly as regards criminal procedure, in which those judges had been trained. His well-founded arguments, backed up by an impressive court presence, were able to win over even the most reluctant. This was already an early sign of the transitional approach he was beginning to adopt, even as a prisoner. In his biography entitled "Long Walk to Freedom", Mandela makes no attempt to conceal his admiration for the judicial and parliamentary institutions that had their origin in London. He is, of course, perfectly capable of citing the role of the American Declaration of Independence and France's Declaration of the Rights of Man, but his initial training was profoundly marked by the key British texts propounding civil rights and the old African tradition of local councils.

It soon became increasingly difficult for him to continue his legal practice. As a pretext for denying his right to plead at the bar, one judge, before whom he was to defend a client, required him to produce his practising certificate forthwith. Mandela succeeded in having this requirement overturned by the Supreme Court.

The trial as proving ground for a transitional process

Nelson Mandela would be prosecuted and arrested almost incessantly from 1956 onwards. He was one of the key defendants in the treason trial held in Johannesburg between 1956 and 1961 that ended, to the government's surprise, in a general acquittal. At the time of the trial he had petitioned, without response, the Prime Minister of the day to call a national constitutional assembly. That plea was only to be answered thirty years later. Clearly, Nelson Mandela had begun considering a transitional mechanism at a very early stage.

The concept of denying the legitimacy of the courts was foreign to him even though, outside the courts, his commitment as a citizen was forcibly expressed.

His return to freedom on 29 March 1961 was short-lived. After leaving South Africa secretly, he was arrested upon his return on 5 August 1962. His book repeats the words of the arresting officer, words that heralded twenty seven years of detention: "You're Nelson Mandela… and you are under arrest".

A major trial, widely known as the "Rivonia" trial, was about to begin. For the authorities, this was to be a vindication that would erase the failure of the 1961 treason trial.

Nelson Mandela announced that he would plead not guilty and focused debate on the introduction of democracy. It was his impassioned words that closed the hearings on 30 April 1964: "Above all, we want equal political rights, because without them our disabilities will be permanent ".

His concluding words, widely reported in the international press, made a great impression: "I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if it needs be, it is an ideal for which I am prepared to die ".

The sentence on 12 June 1964 will be one of life imprisonment.

And so Nelson Mandela's message remained unadulterated. Indeed, thanks to the international recognition won as a result of the "Rivonia" trial, he succeeded in amplifying it throughout his detention, gradually establishing his position as the one man the South African authorities had no choice but to talk to when, in the late 1980s, they became committed to dismantling the apartheid regime.

Creation of the Truth and Reconciliation Commission

Alongside and perhaps going beyond the new constitution – the outcome of a broad consensus introduced by the Freedom Charter and creating a Constitutional Court open to individual pleas – a law passed in June 1995 established a Truth and Reconciliation Commission, one year after Nelson Mandela was elected President of the Republic of South Africa by the first elections held under universal suffrage on 27 April 1994.

The Commission operated from 1996 to 1998, under the chairmanship of Nobel peace prize laureate Desmond Tutu, former Bishop of Cape Town, in the form of three committees: the Human Rights Violations Committee, the Amnesty Committee and the Reparation and Rehabilitation Committee.

Desmond Tutu

This purpose of this body with its new approach to the legal forms of common law, established at the instigation of Nelson Mandela, was to make public the human rights violations that had taken place in the 1960-1994 apartheid period, with all the hearings broadcast daily on television. Amnesty was refused to the vast majority of petitioners.

As an act of faith in humanity (or an institutional compromise for some, a non-proportional response for others), the Truth and Reconciliation Commission undoubtedly represents an essential contribution to the mechanisms of conflict resolution.