Just words for prisoners
Geoffrey Bindman

The Guardian
May 23, 1990

WHAT is a political prisoner? The question comes into sharp focus this week as a working group on the release of political prisoners, set up during exploratory talks between the African National Congress and the South African government, delivers its report. The release of all such prisoners is one of the ANC's preconditions for full negotiations with the South African government.

Surprisingly, international law gives no direct guidance. This became apparent in Namibia last year when political prisoners had to be identified to comply with UN resolution 435, the basis of the transition to independence. The resolution laid down that all political prisoners or detainees held by the South African authorities had to be released before the electoral campaign began. Many were released without question, but the authorities refused to accept that others qualified. The UN special representative overseeing the transition invited Professor Carl Norgaard, president of the European Commission of Human Rights, to adjudicate.

In the absence of any clearly established principles, it was agreed to look at precedents in the law of extradition. These were helpful because courts deciding whether to approve the extradition of a foreigner facing criminal charges often have to decide whether the offence is political. Extradition treaties generally exclude any obligation to surrender political offenders.

British precedents were particularly relevant because the South African courts, which until independence also controlled the Namibian justice system, give special weight to the views of British judges.

British courts have recognised that virtually any offence may be political what counts is the motive and the circumstances in which the crime was committed. An act of violence, even murder, may be a political offence if done with a political motive within a political context. Professor Norgaard applied these principles and advised that several prisoners detained by the South African authorities in Namibia were entitled to be released. The South Africans complied with his recommendations.

A realistic approach for South Africa, in line with Professor Norgaard and the British courts, would be to identify as political prisoners all those imprisoned as a result of engaging in politically motivated activity, whether or not their acts were criminal under the ordinary law.

However, Professor Norgaard added a qualification excluding claims which, viewed objectively, could serve no sensible political purpose. This clashes with the 'non-judgmental' approach of British judges, one of whom said, 100 years ago: 'There are many acts of a political character done without reason, done against all reason; but at the same time one cannot look too hardly and weigh in golden scales the acts of men hot in their political excitement.'

Professor Norgaard's approach led him to regard a SWAPO combatant who had blown up a petrol station as a political prisoner, but not another who had set fire to a bakery. While one was attacking the national transport infrastructure, he reasoned, the other's target was purely in the private domain.

The International Defence and Aid Fund has recently published a carefully analysed list of 753 people imprisoned after trials arising out of political protests. It includes several ANC combatants, but also many ordinary people taking part in political demonstrations which started peacefully and became violent. Among them are the Sharpeville Six, saved from the gallows by an international outcry but still serving prison sentences of 18 years or more, and the Upington 14, under sentence of death, but awaiting an appeal hearing. Their status as political prisoners is undeniable.

Even accepting Professor Norgaard's mixture of subjective and objective criteria, the great majority of those identified by IDAF should qualify for release. The South African government cannot rationally argue for any narrower test, having accepted the Norgaard recommendations in Namibia. In the interests of future peace, they should be prepared to interpret their commitment to release political prisoners as widely as possible.