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REPORT ON

THE PROSCRIPTION OF THE AFRICAN NATIONAL CONGRESS AND ITS IMPACT ON THE RIGHT TO SELF-DETERMINATION IN SOUTH AFRICA

BY

DR ISMAIL VADI

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INSTRUCTIONS

1. I have been instructed by Riverway Law to provide a report on matters within my expertise in support of the application to the British Home Secretary to deproscribe Harakat al-Muqawamah al-Islamiyyah (“Hamas”).

2. The British government has proscribed the organisation Hamas as part of its counter-terrorism policy. Such proscription of legitimate resistance movements serves to inhibit the path to peace, especially while parties aim to end the system of Apartheid in the Occupied Palestinian Territories. The African National Congress (“ANC”), a liberation movement in South Africa, provides a relevant historical precedent. It transitioned to armed resistance following its proscription in 1960, and later, it resumed its role as a liberation movement-cum-political party upon its unbanning in 1990. Using the South African experience, this Report aims to demonstrate the counter-productive nature of proscribing political organisations. By restricting and proscribing groups from political participation, such bans fuel violent resistance. Conversely, the unbanning of the ANC facilitated negotiations and a peaceful transition to democratic governance in South Africa.

QUALIFICATIONS

3. I give this Report in my personal capacity.

4. I hold the following qualifications: an MA in History from the University of the Witwatersrand, an MA in Security Studies from the University of Pretoria, and a PhD in Political Science from the University of Pretoria.

5. I am a founder member of the Progressive Teachers’ League in Lenasia, Johannesburg (South Africa). I also served as the National Vice-President of the South African Democratic Teachers’ Union. In addition, I served in the Gauteng provincial leadership structure of the ANC from 2000 to 2018.

6. I served as a Member of Parliament for the African National Congress (ANC) from 1994 until 2010. Subsequently, I was appointed a Member of the Executive Council (“MEC”) for Roads and Transport in the Gauteng Provincial Government, South Africa, and served in this position until 2019.

7. I have lectured at the University of the Witwatersrand: Faculty of Education.

8. I have retired from formal politics but continue to be active in South African civil society.

9. I have multiple publications on education, South African liberation history, security studies and Muslims in South Africa.

INTRODUCTION

10. The struggle against apartheid in South Africa represents a pivotal chapter in the history of human rights and the struggle for national self-determination. At the heart of this struggle was the African National Congress (“ANC”), a liberation-cum-political movement that endured decades of oppression, including proscription, to ultimately achieve its goal of a non-racial, democratic South Africa.

11. This Report delves into the implications of the ANC's proscription in 1960 by the apartheid government in South Africa, analysing its impact on the organisation's right to self- determination and its counter-productive effects on negotiation efforts. By examining the legal framework, historical context, and strategic consequences, the Report aims to provide a comprehensive understanding of the complexities surrounding the proscription of the ANC and its eventual role in shaping the negotiated settlement that ended the system of apartheid.

HISTORICAL BACKGROUND OF THE ANC AND ITS ROLE IN THE ANTI- APARTHEID STRUGGLE

12. Formed in 1912 as the South African Native National Congress, later renamed the ANC, it emerged as a national response of the African majority in South Africa to colonialism, their total exclusion from processes leading to the Union of South Africa in 1910 under the auspices of the British government and to the growing injustices they faced under White minority rule.

The ANC’s mission was to unite the African people and to secure their fundamental rights, including franchise, land ownership, and equal access to education and socio–economic opportunities.¹

13. In its early years, the ANC adopted a moderate strategy of peaceful protest, petitions, and legal challenges to discriminatory laws. Figures like John Dube, Pixley ka Isaka Seme, and Sol Plaatje led the organisation in pursuing civil rights through constitutional means. This commitment to non-violence and adherence to the rule of law established the ANC's moral high ground in the struggle against apartheid.²

14. However, the South African government's response to the ANC's peaceful advocacy was one of increasing repression. The rise of Afrikaner nationalism and the formal implementation of apartheid policies after 1948 under the National Party (“NP”) led to a series of legislative measures designed to suppress any opposition to the segregationist and racist regime. The NP government perceived the ANC as a growing threat to the established social order, mainly as the organisation gained widespread support among Africans and, to some extent at least, some of its leaders had aligned themselves with socialist ideologies as espoused by the banned Communist Party of South Africa (“CPSA”).³ The Suppression of Communism Act No. 44 of 1950 (“Suppression of Communism Act”), despite its name, was a broadly worded piece of legislation used to target any organisation deemed to be promoting communism or disrupting public order. This Act laid the groundwork for the later, more targeted suppression of the ANC.⁴

15. The Defiance Campaign of 1952, where the ANC and its allies engaged in acts of civil disobedience such as boycotts, strikes, and the wilful breaking of selected discriminatory laws, further heightened tensions between the organisation and the government. The apartheid government responded with mass arrests and increased restrictions on political activity.⁵ The adoption of the Freedom Charter in 1955 (“Freedom Charter”), which called for a non-racial democratic South Africa, further solidified the ANC's position as the leading voice of opposition to apartheid. The ANC's significance in the anti-apartheid struggle cannot be overstated.⁶ However, it also increased the government's determination to suppress the organisation through banning some of its leaders and arresting 156 leaders of the liberation movement and charging them for treason in the Treason Trial of 1956 - 1961.⁷

16. The Sharpeville Massacre of 1960 (“Sharpeville Massacre”), where police opened fire on peaceful protesters, killing 67 (Sixty-Seven) people and injuring 186 (One Hundred and Eighty- Six) others, marked a turning point in the relationship between the ANC and the South African

¹ Andre Odendaal, The Founders: The Origins of the ANC and the Struggle for Democracy in South Africa (Jacana Media, 2012), pp. 466 – 473; David Welsh, The Rise and Fall of Apartheid (Jonathan Ball Publishers, 2009), pp. 37 – 40.

² Welsh, ibid, pp. 37 – 45.

³ “Umkhonto we Sizwe (MK) in Exile”, (South African History Online, 7 November 2011, last updated 4 December 2019) https://www.sahistory.org.za/article/umkhonto-wesizwe-mk-exile, accessed on 21 December 2024.

⁴ Nigel Worden, The Making of Modern South Africa: Conquest, Segregation and Apartheid (Blackwell Publishing, 2007), pp. 106 – 117.

⁵ “Defiance Campaign 1952”, (South African History Online, 21 March 2011, last updated 14 November 2018)

https://www.sahistory.org.za/article/defiance-campaign-1952, accessed on 21 December 2024.

⁶ Ismail Vadi, The Congress of the People and Freedom Charter (Jacana Media, 2015), pp. 133 – 162; The Editors of Encyclopaedia Britannica, “Freedom Charter South Africa [1955]”, (Encyclopaedia Britannica, 26 April 2023) https://www.britannica.com/topic/African-National-Congress, accessed on 21 December 2024.

⁷ Luli Callinicos, Oliver Tambo: Beyond the Engeli Mountains (David Philip, 2004), pp. 209 – 249; “Treason Trial 1956 – 1961”, (South African History Online, 31 March 2011, last updated 5 July 2021) https://www.sahistory.org.za/article/treason-trial-

1956-1961, accessed on 21 December 2024.

government.⁸ The government used this event as a pretext to intensify its crackdown on dissent. It declared a State of Emergency and detained over 1 200 political activists. The intense repression culminated in the proscription in April 1960 of the ANC and the Pan Africanist Congress (“PAC”) under the Unlawful Organisations Act No.34 of 1960 (“Unlawful Organisations Act”).⁹ This effectively criminalised the ANC, driving it underground and forcing a dramatic shift in its strategy. It opted for armed struggle as a legitimate form of resistance to apartheid and White minority rule, and formed a new military structure, Umkhonto we Sizwe.¹⁰

LEGAL FRAMEWORK FOR PROSCRIPTION AND THE RIGHT TO SELF- DETERMINATION

17. Proscription in the South African context entailed the legal prohibition of an organisation, rendering its existence and activities unlawful. This meant membership, support, or any association with the proscribed organisation was deemed criminal. The legal basis for proscribing organisations like the ANC stemmed from the Suppression of Communism Act and the Unlawful Organisations Act. Despite its name, the former was broadly worded and used to target organisations deemed to be promoting communism or disrupting public order. At the same time, the latter was explicitly enacted to ban the ANC and the PAC. These Acts were further bolstered by security legislation such as the Public Safety Act No.3 of 1953 (“Public Safety Act”) and the Criminal Law Amendment Act No.8 of 1953 (“Criminal Law Amendment Act”), which provided the government with sweeping powers to detain individuals without trial, restrict freedom of movement, and suppress political activity.¹¹

18. Under international law, the right to self-determination is a cardinal principle enshrined in the United Nations Charter and the International Covenant on Civil and Political Rights. This grants all peoples the freedom to "freely determine their political status and freely pursue their economic, social and cultural development”.¹²

19. By proscribing the ANC, the apartheid state violated the fundamental right to self- determination of the majority Black population (African, Coloured and Indian) in South Africa. This act denied them the ability to participate in the political process and shape their future, effectively entrenching White minority rule. Apartheid itself compounded this violation through systemic discrimination and the denial of fundamental human rights, relegating Black South Africans to second-class citizenship. The ANC's struggle against apartheid was intrinsically linked to the fight for self-determination, a right enshrined in international law

⁸ Sylvia Neame, The Congress Movement: The Unfolding of the Congress Alliance 1912 – 1961 Volume 3 (HSRC Press, 2015), pp. 516 – 517; “Origins: Formation, Sharpeville and Banning, 1959-1960”, South African History Online, 30 March 2011, last updated 16 November 2016), https://www.sahistory.org.za/article/origins-formation-sharpeville-and-banning-1959-1960,

accessed on 11 December 2024.

⁹ Ismail Vadi, Thambi Naidoo and Family: Struggle for a Non-Racial South Africa (Ahmed Kathrada Foundation, 2021), pp. 131 – 140; “Unlawful Organizations Act, Act No. 34 of 1960”, (22 February 2016, last updated 27 August 2019) https://www.sahistory.org.za/archive/unlawful-organizations-act-act-no-34-1960, accessed on 7 November 2024; Neame, ibid, p. 516.

¹⁰ Stephen R. Davis, The ANC’s War against Apartheid: Umkhonto we Sizwe and the Liberation of South Africa (Indiana University Press, 2018), pp. 20 and 48; Elinor Sisulu, Walter & Albertina Sisulu: In Our Lifetime (David Philip, 2002), pp. 146 – 147.

¹¹ John Dugard, Human Rights and the South African Legal Order (Princeton University Press, 2015), pp. 101–106; David S.K. Culhane, "No Easy Talk: South Africa and the Suppression of Political Speech", Fordham International Law Journal, 17.4 (1993), pp. 905 – 929.

¹² Office of the United Nations High Commissioner for Human Rights, International Covenant on Economic, Social and Cultural Rights (United Nations, 1976), https://www.ohchr.org/sites/default/files/cescr.pdf, accessed on 8 November 2024.

and denied to the majority by a regime that segregated and subjugated them based on race. This denial contravened the United Nations Charter and exhibited a profound disregard for human rights and human dignity.¹³

20. The South African government justified the proscription of the ANC on the grounds of ‘anti- communism’, ‘national security’ and the preservation of public order. It argued that the ANC's activities incited violence and posed a threat to the stability of the state. In contrast, critics argued that this justification was a mere pretext for suppressing legitimate dissent and maintaining the apartheid system. They argued that proscription was a disproportionate response that infringed upon fundamental human rights and undermined the possibility of a peaceful resolution to the conflict. By silencing the ANC and other anti-apartheid organisations, the government effectively closed off avenues for peaceful negotiation and dialogue, thereby contributing to the escalation of the conflict.¹⁴

IMPACT OF PROSCRIPTION ON THE ANC'S OPERATIONS AND STRATEGY

21. The proscription profoundly impacted the ANC's operations and strategy. Forced to operate underground, the organisation's leadership went into exile, establishing bases and structures in neighbouring countries such as Zambia, Angola, Tanzania, and Mozambique and further afield in London and other East European and Western capitals.¹⁵ Public political activities within South Africa were severely curtailed, with members facing arrest and detention for any association with the banned organisation.¹⁶ Communication and co-ordination became significantly more challenging, hindering the ANC's ability to mobilise and organise effectively. The organisation relied on clandestine networks and underground structures to maintain contact with its members and supporters within South Africa.¹⁷

22. Proscription of the ANC resulted in the movement significantly shifting its strategy, with the organisation embracing armed struggle to challenge the apartheid regime. In December 1961, Umkhonto we Sizwe (“MK”), the armed wing of the ANC, was to carry out acts of sabotage against government installations and infrastructure. This marked a departure from the ANC's previous commitment to non-violent resistance, reflecting the growing frustration with the government's intransigence and the belief that peaceful means had been exhausted. Despite the shift to armed resistance, MK intended to avoid the loss of civilian lives during its armed actions.¹⁸

23. The decision to engage in armed struggle was not taken lightly. It was a response to the state's violence, the banning of peaceful protest, and the failure of non-violent resistance to achieve meaningful change. The ANC argued that armed struggle, combined with internal mass mobilisation of the oppressed and international solidarity campaigns against apartheid, was a

¹³ South African Human Rights Commission, Reflections on Democracy and Human Rights: A Decade of the South African Constitution, Act No.108 of 1996 (South African Human Rights Commission, 2006), pp. 2 – 4.

¹⁴ Sandra Liebenberg, Human Development and Human Rights: South African Country Study, Human Development Report 2000, Human Development Report Office, United Nations Development Programme (UNDP), (South African Human Rights Commission, 2000), pp.5 – 8.

¹⁵ McKinley T. Dale, "Umkhonto We Sizwe: A Critical Analysis of the Armed Struggle of the African National Congress”, South African Historical Journal, (2018) 70(1), p. 5.

¹⁶ Tsepe Motumi, “Umkhonto we Sizwe - Structure, Training and Force Levels (1984 to 1994)”, African Defence Review (1994)18, https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv02918/06lv02961.htm, accessed on 13 December 2024.

¹⁷ Mckinley, supra note 15, pp.10 – 12.

¹⁸ Davis, supra note 10, pp. 5 and 102.

legitimate means of self-defence against an oppressive regime that denied fundamental human rights to the majority. It was seen as a means of exerting pressure on the government, disrupting the apartheid economy, and demonstrating the regime's vulnerability. The ANC also emphasised that MK's operations were targeted at symbols of apartheid and aimed to avoid civilian casualties.¹⁹

24. In its submission to the Truth and Reconciliation Commission (“TRC”), the ANC emphasized the following:

In its strategy and tactics, the ANC put politics at the fore, and it defined itself and its army, Umkhonto we Sizwe, as an instrument of a people in political motion; the barrel of the gun as one of the means – and not the means, least of all, an end in itself. It mobilised the people to revolt in an organised fashion; it mobilised the international community to act decisively against apartheid... The legitimacy and legality of this struggle were written in numerous covenants of the international community... In its conduct of armed struggle, the ANC sought to avoid civilian injury and loss of life. It ensured that its combatants understood the reasons behind the armed struggle as well as the tactics required to win to our side the overwhelming majority of South Africans. In its treatment of captured agents and combatants of the apartheid regime, it emphasised the need for their rehabilitation. It committed itself to international norms in this regard.²⁰

ARMED STRUGGLE: NECESSARY OR COUNTER-PRODUCTIVE?

25. The ANC's adoption of armed struggle remains a contentious issue. Critics argue that it alienated potential allies, provided the government with a justification for further repression, and ultimately hindered the prospects for a negotiated settlement. They contend that the violence associated with armed struggle tarnished the ANC's image and undermined its moral authority. Some argue that the armed struggle played into the government's narrative of the ANC as a ‘terrorist organisation’, thereby justifying its repressive measures.²¹

26. Proponents of the armed struggle argue that it was a necessary response to the state's violence and criminalisation of peaceful means of protest and resistance through laws passed by the apartheid regime.²² In addition, it is widely recognised that armed resistance by MK played a crucial role in pressuring the government to negotiate.²³ However, some arguments suggest that negotiations were considered because of South Africa's internal struggle and economic decline, while others highlight the impact of international pressure and sanctions.²⁴

27. Further, proponents of the armed struggle maintain that the ANC's policy of targeting government installations and avoiding civilian casualties demonstrated a commitment to

¹⁹ “Umkhonto we Sizwe”, (South African History Online, 20 March 2011, last updated 8 January 2024), https://www.sahistory.org.za/article/umkhonto-wesizwe-mk, accessed on 16 November 2024.

²⁰ African National Congress, Further Submissions and Responses by the African National Congress to Questions Raised by the Commission for Truth and Reconciliation (ANC, 12 May 1997), http://www.anc.org.za/ancdocs/misc/trc2.html, accessed on 23 December 2024.

²¹ Susan H. Farbstein, “Reflections on the Question of When, if Ever, Violence Is Justified in Struggles for Political or Social Change”, Harvard Human Rights Journal, 27 (2014), pp.1 – 5.

²² Gwinyayi Albert Dzinesa, Disarmament, Demobilisation and Reintegration in Southern Africa (Palgrave Macmillan, 2017), pp. 133

– 136.

²³ Liebenberg, supra note 14, pp. 9 – 10.

²⁴ Hakan Thörn, Anti-Apartheid and the Emergence of a Global Civil Society (Palgrave Macmillan, 2006), pp. 1 – 6.

minimising harm and loss of life whilst gaining maximum publicity for its struggle.²⁵ MK's founding manifesto also contained the position on minimising civilian lives.²⁶ The turn to armed struggle was justified as a response to the exhaustion of all legal means available and as a strategy to bring about negotiations with the White government.²⁷

28. The armed struggle was also aimed at galvanising internal resistance and raise international awareness of apartheid's injustices.²⁸ The international community took note of the injustices being committed by the apartheid regime and responded through various anti-apartheid movements exerting pressure on their governments to impose sanctions on the apartheid regime, which contributed to internal pressure being placed on the South African government.²⁹ The ANC supported these sanctions, and its leaders lobbied to keep them in place until meaningful change was achieved. This thereby reinforced the ANC's domestic standing and maintained home support.³⁰ The anti-apartheid movement, including the ANC, considered sanctions essential and dedicated resources to co-ordinating and promoting them against South Africa.³¹

29. The struggle against apartheid garnered worldwide support from individuals not directly affected by the system. This support was defined through “solidarity” and manifested in collective actions like protests, boycotts, and other forms of activism. The international backing for the ANC and Black South Africans was evident in the global campaign to abolish apartheid, which involved millions of people from numerous countries.³² The ANC's global lobbying and international solidarity were pivotal in sustaining pressure on the South African regime and bolstering domestic support.³³

30. Transnational social movements and global civil society facilitated international support for the ANC and Black South Africans by disseminating information about South African events and maintaining public attention for over 30 years. The anti-apartheid movement, including the ANC, engaged in conventional politics and direct interactions with state and business, labour and civil society representatives worldwide, enhancing transnational activism and global civil society.³⁴

31. The preceding paragraphs demonstrate that the broader international community, through the commitment of its citizens, stood in solidarity with the South African cause for the liberation and freedom of Black South Africans.³⁵

32. By demonstrating its willingness to fight back, the ANC inspired many Black South Africans, including democratic minded Whites, to join the struggle and challenged the notion that the apartheid regime was invincible. The armed struggle also attracted support from some democratic minded White activists.³⁶

²⁵ Clifton Crais et al., The South Africa Reader (Duke University Press Books, 2013), pp. 345 – 355.

²⁶ Ibid.

²⁷ Ibid.

²⁸ Davis, supra note 10, pp 4 – 5.

²⁹ Christian Lahusen (ed), The Rhetoric of Moral Protest (De Gruyter, 2013), pp. 351 – 362.

³⁰ Andrea K. Grove, Political Leadership in Foreign Policy (Palgrave Macmillan, 2007), pp. 115 – 120.

³¹ Neta Crawford et al, How Sanctions Work (Palgrave Macmillan, 1999), pp. 15 – 19.

³² Thörn, supra note 24, pp.1 – 6.

³³ Grove, supra note 30, pp. 101 – 120.

³⁴ Nick Crowson and others, NGOs in Contemporary Britain (Palgrave Macmillan, 2009), pp. 140 – 143.

³⁵ Thörn, supra note 24, pp.1 – 27.

³⁶ Khanyi Mlaba, Aaron Rakhetsi and Nomthandazo Xaba, “10 South African Freedom Fighters (Who Aren't Nelson Mandela) That Everyone Should Know”, (Global Citizen, 27 April 2021), https://www.globalcitizen.org/en/content/south-africa- freedom-fighters-to-know-apartheid/, accessed on 22 December 2024.

33. International reactions to the ANC's armed struggle were initially mixed. Countries in Africa, the Nordic countries, and the ‘Socialist bloc’ expressed support for the ANC's struggle against apartheid.³⁷ The Organisation of African Unity (“OAU”) and the United Nations provided moral and material support to the ANC, recognising its legitimacy as the representative of the South African people.³⁸ The ANC's alliance with the South African Communist Party (“SACP”) was supported by various international organisations connected with Moscow, such as the World Federation of Women, the World Federation of Democratic Youth, and the World Peace Council, which provided practical, material and political support, including organising campaigns in support of the boycott of, or sanctions against South Africa.³⁹

34. Some Western governments, influenced by ‘Cold War politics’, classified the ANC as a ‘terrorist organisation’ and supported the South African government. This was particularly true of the United States of America and the United Kingdom in the 1960s and 1970s, which viewed the ANC's alliance with the SACP with suspicion.⁴⁰ They benignly accepted the claim of the apartheid government that the ANC/SACP alliance was an integral part of the ‘Communist bloc’ positioned against the Western capitalist world.⁴¹

35. As the brutality of the apartheid regime became increasingly apparent and international condemnation grew, the ANC's armed struggle gained greater legitimacy. The Soweto students’ uprising of 1976 (“Soweto Uprising”), where African students protested the imposition of Afrikaans as a medium of instruction was met with police violence, sparked international outrage and further galvanised the anti-apartheid movement. The imposition of economic sanctions by the United Nations (“UN”) and selected countries, coupled with cultural boycotts and divestment campaigns, put increasing pressure on the South African government.⁴²

36. Faced with growing internal mass-based resistance to apartheid in the 1980s under the banner of the United Democratic Front (“UDF”), the intensification of the armed struggle by MK and the growing international campaign to isolate apartheid South Africa, the apartheid state detained approximately 30 000 (thirty-thousand) community, labour and civic leaders, banned several organisations operating in South Africa and eventually imposed a State of Emergency to curb resistance to its rule. This however failed in subduing resistance to apartheid; rather it resulted in an intensification of the internal and international struggle against the apartheid regime, thereby forcing the apartheid state to enter negotiations with the ANC and other political movements.⁴³

37. The release of Nelson Mandela in 1990 after 27 years of imprisonment and the unbanning of the ANC and other political organisations was a watershed moment. It signalled the government's willingness to negotiate a political settlement to the conflict in the country. This shift in the government's stance was driven by a confluence of factors such as growing internal unrest, international pressure, and the realisation that apartheid was unsustainable in the long term. The armed struggle waged by the ANC and other liberation movements had taken its toll, and the South African economy was reeling under the weight of international sanctions.⁴⁴

³⁷ Jessica Piombo, Institutions, Ethnicity, and Political Mobilization in South Africa (Palgrave Macmillan, 2009), pp. 80 – 101.

³⁸ Ibid.

³⁹ Irina Filatova, The Hidden Thread (Jonathan Ball, 2013), pp. 305 – 314.

⁴⁰ Piombo, supra note 37.

⁴¹ Richard Bissell (ed), Apartheid and International Organization (Taylor & Francis, 2020), pp. 17 – 20.

⁴² Mats Ove Lundahl, Apartheid in Theory and Practice: An Economic Analysis (Routledge, 2019), pp. 191–195.

⁴³ Anthea Jeffrey, People’s War (Jonathan Ball, 2019), p. 193; Sylvia Neame, Drama of the Peace Process in South Africa: I Look Back 30 Years (BestRed/HSRC, 2021).

⁴⁴ South African Human Rights Commission, supra note 13; Neame, ibid.

38. The re-legalisation of the ANC was a crucial step in the transition to a democratic South Africa. It allowed the ANC to participate openly and legitimately in the political process, culminating in political negotiations under the Convention for a Democratic South Africa (“CODESA”). CODESA brought together the government, the ANC, and other political parties to negotiate a new constitutional order for the country. The ANC's participation in CODESA as a legitimate political actor was essential in ensuring the inclusivity and legitimacy of the negotiation process.⁴⁵

39. The unbanning of the ANC by the apartheid regime, and the subsequent negotiations with the ANC, demonstrated the futility of attempting to suppress popular movements through proscription. It highlighted the importance of recognising the legitimacy of popular organisations and engaging in dialogue to resolve political disputes. The South African experience is a valuable lesson for other countries grappling with internal conflict, underscoring the need for inclusive negotiations and recognising all parties' right to self-expression and self- determination.⁴⁶

THE 1994 DEMOCRATIC ELECTION AND THE TRUTH AND RECONCILIATION COMMISSION

40. The 1994 Democratic Elections in South Africa: The 1994 democratic elections (“1994 Elections”) marked a profound turning point in South Africa's history, culminating years of anti-apartheid struggle and four years of intense political negotiations. The groundwork for these pivotal elections was laid by CODESA, which despite significant challenges such as on- going political violence and disagreements over the power-sharing model, managed to set the stage for a peaceful transition. Nelson Mandela's election as President symbolised the triumph of democracy over apartheid and heralded a new era of hope and inclusivity for a nation marred by long-standing racial divisions and conflict.⁴⁷

41. Build-up and Lead to the 1994 Elections: The democratic electoral process resulted from painstaking negotiations involving various political parties and movements. The Boipatong massacre in 1992 almost derailed these negotiations, highlighting the fragile nature of the peace process. Despite these tensions, the eventual agreement to hold all-inclusive elections demonstrated the commitment of all parties to a peaceful transition. The international community supported the process with the UN, the European Union and the OAU deploying election monitors to ensure fairness and transparency.⁴⁸

42. 1994 Election Outcomes: The elections witnessed an unprecedented and peaceful turnout, with long queues of voters eager to exercise their newfound electoral rights. The ANC won 62.6 percent of the vote, securing 252 of the 400 seats in the National Assembly. This overwhelming

⁴⁵ Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela (Abacus, 2003), pp. 666 – 727.

⁴⁶ Kenneth Christie, The South African Truth Commission (Palgrave Macmillan, 2000), pp. 68 – 73.

⁴⁷ “CODESA II Talks end in Deadlock”, (South African History Online, 16 March 2011, last updated 30 September 2019), https://www.sahistory.org.za/dated-event/codesa-ii-talks-end-deadlock, accessed on 17 November 2024.

⁴⁸ “Violence in the time of negotiations: The Boipatong Massacre”, (South African History Archive, 17 June 2014), https://www.saha.org.za/news/2014/May/violence_in_the_time_of_negotiations_the_boipatong_massacre.htm, accessed on 17 November 2024.

victory enabled Mandela to become the first Black President of South Africa, embodying the aspirations of millions of South Africans.⁴⁹

43. The Truth and Reconciliation Commission (“TRC”): Established in 1996 under the leadership of Archbishop Desmond Tutu, the TRC was pivotal in South Africa's transition. Tasked with recording and, in selected cases, granting amnesty to perpetrators of human rights violations, the TRC played a crucial role in promoting transparency and healing. By providing a platform for victims and perpetrators to share their stories, the TRC contributed significantly to a process of national reconciliation.⁵⁰ Despite criticisms of allowing some perpetrators to evade full accountability, its impact on fostering dialogue and understanding among conflicting parties was undeniable.⁵¹

44. Promoting Reconciliation and Healing: The TRC's efforts were instrumental in fostering a culture of forgiveness and understanding aimed at transcending the divisions of apartheid. Community-based reconciliation forums and educational programmes about the nation's history were integral to building a cohesive society dedicated to democracy, equality, and human rights, which continue to influence South Africa's policies and societal norms today.⁵²

THE COUNTERPRODUCTIVITY OF PROSCRIPTION: A DEEPER DIVE

45. While the eventual electoral outcome in South Africa demonstrated the failure of proscription to quell the ANC, it is crucial to examine precisely why this strategy proved counterproductive. Several key factors contributed to this outcome:

    1. Fuelling Radicalisation: By driving the ANC underground and criminalising its activities, the government inadvertently fostered an environment conducive to radicalisation. The banning of peaceful protest and the suppression of moderate voices within the ANC created a vacuum that was filled by those advocating for more militant forms of resistance. This, in turn, strengthened the argument for armed struggle and made it more difficult to find common ground for negotiations. The government's actions validated the view that peaceful means were ineffective and that only armed struggle could bring about meaningful change.⁵³

    2. The Psychological Impact of Repression: Beyond the strategic implications, the proscription had a profound psychological impact on both the ANC and the broader Black population in South Africa. By being labelled as “criminals” and “terrorists”, ANC members were forced to confront their identity and their place in society. This experience often led to hardening attitudes and a greater willingness to embrace more radical tactics. For many Black South Africans, the proscription of the ANC reinforced their sense of social exclusion and political marginalisation, further fuelling resentment against the apartheid regime.⁵⁴ In addition, the use of ‘vigilante activities’ by the

⁴⁹ O' Malley Archives, “The 1994 Elections”, (Nelson Mandela Foundation: The Heart of Hope, n/d), https://omalley.nelsonmandela.org/index.php/site/q/03lv02039/04lv02128/05lv02130.htm, accessed on 16 November 2024.

⁵⁰ Desmond Tutu, No Future Without Forgiveness, (Image Books, 1999), pp. 74 – 80.

⁵¹ Christie, supra note 46, at p. 151.

⁵² Christie, supra note 46, at 94 – 95.

⁵³ Farbstein, supra note 21.

⁵⁴ Daniel Kirkpatrick, Political Expression and Conflict Transformation in Divided Societies: Criminalising Politics and Politicising Crime

(Routledge, 2020), pp. 37 – 45.

apartheid police, the military and the security agencies against Black communities and the broader liberation movement, which were gradually exposed by the independent media over time, completely discredited the apartheid regime in the eyes of the majority of South Africans and highlighted counter-productive nature of repression and unlawful state action.⁵⁵

3. Strengthening Internal Solidarity: Paradoxically, the ANC's proscription strengthened its internal solidarity and resolve to defeat apartheid. Facing a common enemy and enduring shared hardship often fosters a sense of unity and purpose. The ANC's banning forced its members to rely on one another, deepening their commitment to the cause and making them less likely to succumb to government pressure. The shared experience of operating underground, evading capture, and enduring imprisonment forged stronger bonds among ANC members, creating a resilient and cohesive organisation.⁵⁶ In addition, banning the ANC led to the reorganisation of the Black opposition such as the formation of the United Democratic Front (“UDF”) and the militant Congress of South African Trade Unions (“COSATU”), which galvanised workers against apartheid.⁵⁷ This internal solidarity and reorganisation of opposition groups undermined the effectiveness of the proscription of the ANC.

4. Boosting International Legitimacy: The South African government's heavy-handed approach to suppressing dissent, including the proscription of the ANC, drew international condemnation and galvanised support for the anti-apartheid movement. The ANC's portrayal as a victim of unjust persecution resonated with many people around the world, enhancing its legitimacy and increasing pressure on the South African government to change its policies. The proscription effectively turned the ANC into a symbol of resistance against oppression, garnering support from governments, international organisations, and individuals across the globe.⁵⁸

5. Obstructing Channels for Dialogue: By banning the ANC and refusing to engage with it, the apartheid government closed off potential channels for dialogue and negotiation. This made it more difficult to find a peaceful resolution to the conflict and created a climate of mistrust that hindered future attempts at the resolution of the conflict. The proscription effectively forced the ANC to resort to violence as the only means of being heard, thereby prolonging the conflict and increasing the human cost. The government's refusal to acknowledge the ANC as a legitimate political actor further entrenched the divide between the two sides and made it more difficult to bridge the gap.⁵⁹

6. Undermining the Rule of Law: The use of proscription and other repressive measures to silence dissent undermined the rule of law and eroded the legitimacy of the South African government. By resorting to arbitrary arrests, detention without trial, and censorship, the government created a climate of fear and insecurity. This alienated a significant portion of the population and damaged South Africa's international reputation, further isolating the country. The government's disregard for due process and human rights undermined its moral authority and strengthened the case for

⁵⁵ David Matas, No More (Dundurn Press, 1996). pp. 101 – 104.

⁵⁶ Lee Jarvis and Tim Legrand (eds), Banning Them, Securing Us? (Manchester University Press, 2020), pp. 111 – 131.

⁵⁷ Heather Thuynsma, Political Parties in South Africa (Africa Institute of South Africa, 2017), pp. 162 –168.

⁵⁸ Willem P. Esterhuyse, "The International Political Status of the African National Congress", Africa Insight, 19.1 (1989), pp. 34 – 45.

⁵⁹ Jarvis and Legrand supra note 56.

international intervention.⁶⁰ Furthermore, the use of proscription for political purposes raises concerns about the instrumentalisation of proscription decisions beyond counterterrorism. This highlights the risk of decisions being influenced by more expansive geopolitical interests and diplomatic considerations. This instrumentalisation undermines the impartial application of the rule of law, as wider political agendas rather than strict legal considerations may influence proscription decisions.⁶¹

THE EVOLUTION OF THE ANC IN EXILE

46. The proscription forced the ANC to adapt and evolve in exile.⁶² While operating underground and engaging in armed struggle, the organisation continued its political and diplomatic efforts to garner international support and to isolate the apartheid regime. The ANC established offices in various countries, lobbying governments and international organisations to impose sanctions on South Africa and to recognise the ANC as the legitimate representative of the South African people.⁶³

47. The period of exile also saw the ANC grapple with internal challenges, including ideological debates, leadership struggles, and the difficulties of maintaining unity and cohesion across dispersed networks. The organisation had to navigate the complexities of ‘Cold War politics’, balancing its alliances with Western governments and former socialist states. Despite these challenges, the ANC emerged from exile as a more sophisticated and resilient organisation with a clear vision for a democratic South Africa.⁶⁴

48. The imposition of sanctions and international pressure were critical elements in the struggle against apartheid. The Commonwealth of Nations’ (“Commonwealth”) decision to send an Eminent Persons Group to South Africa, alongside the imposition of sanctions by Commonwealth states - with the notable exception of Britain - proved pivotal in exerting pressure on the apartheid regime.⁶⁵

THE ROLE OF INTERNATIONAL PRESSURE AND INTERNAL UNREST

49. While the ANC's armed struggle and diplomatic efforts played a significant role in pressuring the South African government to negotiate, the combination of international pressure and internal unrest ultimately forced the apartheid regime to the negotiating table. The imposition of economic sanctions by the United Nations and individual countries, coupled with cultural boycotts and divestment campaigns, had a crippling effect on the South African economy. The growing internal resistance, manifested in mass protests, strikes, and civil disobedience campaigns, further weakened the government's grip on power.⁶⁶

⁶⁰ Ibid, pp. 111 – 132.

⁶¹ Ibid.

⁶² Piombo, supra note 37.

⁶³ Ibid.

⁶⁴ Bert Klandermans and Cornelis van Stralen, Movements in Times of Democratic Transition (Temple University Press, 2015), pp. 209 – 210.

⁶⁵ Grove, supra note 30.

⁶⁶ UN General Assembly, “Resolutions on South Africa” (20 November 1987), UN Docs A/RES/42/23 A–H and A/RES/42/23 (without a letter), http://www.worldlii.org/int/other/UNGA/1987/; and UN General Assembly,

50. The 1976 Soweto students’ uprising marked a turning point in the anti-apartheid struggle. The brutality of the government's response sparked international outrage and strengthened the internal resistance movement. The subsequent years saw an escalation of violence and unrest as several thousand students fled the country and joined the ANC-in-exile, making it increasingly clear that the apartheid system was unsustainable.⁶⁷

51. The Soweto students’ uprising had profound and far-reaching implications for the anti- apartheid struggle on multiple levels. Nationally, it inspired a generation of protestors and student leaders, who would lead the internal insurrection of the 1980s,⁶⁸ while regionally, it bolstered the armed struggle by providing thousands of recruits to the ANC in particular.⁶⁹ Internationally, the uprising captured global attention, epitomised by the iconic photograph of the lifeless body of the young student, Hector Pieterson, which reignited international engagement with the plight of oppressed South Africans.⁷⁰ It unified resistance across society, reflecting the growing discontent and defiance of the historically oppressed and economically exploited Black population under apartheid.⁷¹ At the same time, it served as a wake-up call, redefining the spirit of resistance and sowing fear, confusion, and insecurity among supporters of the apartheid government.⁷²

THE ROAD TO NEGOTIATION AND THE UNBANNING OF THE ANC

52. By the late 1980s, the South African government was facing a deep crisis of legitimacy. The combination of international pressure, internal unrest, an intensification of the armed struggle and economic decline forced the apartheid regime to reconsider its policies. Nelson Mandela's release in 1990, after 27 years of imprisonment, signalled its willingness to engage in dialogue and paved the way for the unbanning of the ANC and other political organisations.⁷³

53. The unbanning of the ANC was a momentous occasion, marking the culmination of decades of struggle against apartheid. It allowed the ANC to return to South Africa as a legitimate political actor and participate in the negotiations that would shape the country's future. The subsequent CODESA negotiations, while fraught with challenges and setbacks, ultimately led to the adoption of an Interim Constitution and the establishment in 1994 of a democratic South Africa.⁷⁴

IMPACT OF THE DEPROSCRIPTION OF THE ANC ON THE SOUTH AFRICAN POLITICAL LANDSCAPE

54. The lifting of the ban on the ANC by the apartheid government significantly impacted both the ANC and the nature of South African politics.

“Resolution on South Africa”, (7 December 1987), UN Doc A/RES/42/124, http://www.worldlii.org/int/other/UNGA/1987/, accessed on 22 December 2024.

⁶⁷ Thörn, supra note 24, pp. 159 – 161.

⁶⁸ Ibid.

⁶⁹ Ibid.

⁷⁰ Thörn, supra note 24.

⁷¹ Ashok Swain, Education as Social Action (Palgrave Macmillan, 2005), pp. 184 – 188.

⁷² Mary Kleinenberg and Christopher Merrett, Standing on Street Corners (Natal Society Foundation, 2015), pp. 71 – 92.

⁷³ Mandela, supra note 45, pp. 671 – 737.

⁷⁴ David Welsh, "Hamlet without the Prince: The Codesa Impasse", Indicator South Africa, 9.4 (1992), pp. 15 – 22.

55. Prior to its unbanning, the ANC was engaged in a "peoples war" against the apartheid regime, with combative rhetoric and military-style activities, as evidenced by broadcasts from Freedom Radio, the ANC's official radio station in exile.⁷⁵ This militant history influenced perceptions of the ANC, shaping its image as a revolutionary force fighting against apartheid through armed struggle.⁷⁶

56. The ANC's trajectory and political posture evolved following Nelson Mandela's release and the changed political circumstances. Mandela emphasised that the ANC was a broad coalition of political forces, united by its determination to oppose racial oppression.⁷⁷ The ANC's shift from a revolutionary movement to a liberation-cum-political movement embodied by Mandela and other leaders from different races gave it a broad non-racial character that would unite the Black majority and ensure its political dominance.⁷⁸

57. In addition, the ANC's strategic goals also evolved. While the organisation initially maintained a strategic objective of seizing power to establish a national democratic state, by 1989, more qualified expectations about a post-apartheid political order were beginning to prevail within the liberation movement.

58. This in part was the result of the developing crises within the former Soviet Union and East European socialist states, as manifested in the collapse of the Berlin Wall in the fall of 1989. This event profoundly influenced ANC activists and leaders, resulting in a shift in the ANC's strategic stance and a move towards negotiations as the most realistic option.⁷⁹

59. The ANC's engagement in internal debates after its unbanning and its reorganisation as a mass- based liberation movement inside the country raised new questions about the character of its membership and leadership, the role of women in politics and the demand for its democratisation.⁸⁰

60. In summary, lifting the ban on the ANC by the apartheid government in South Africa brought about significant changes in the organisation's trajectory, political stance, and internal dynamics, ultimately shaping the broader nature of South African politics. The ANC's shift from a militant revolutionary force to a dominant political entity with a broad non-racial character ensured that it enjoyed significant support within the electorate, at least over the next three decades.

LESSONS LEARNED AND RECOMMENDATIONS

61. The South African experience with the proscription of the ANC offers valuable lessons for other countries dealing with internal conflict and political dissent. Key takeaways include:

    1. The Impact of Repression: Proscription and other forms of repression rarely effectively silence popular movements or resolve underlying grievances. They often have the

⁷⁵ Deonandan K and others, From Revolutionary Movements to Political Parties (Palgrave Macmillan, 2007), pp. 138 – 148.

⁷⁶ Gwinyayi Albert Dzinesa, Disarmament, Demobilisation and Reintegration in Southern Africa (Palgrave Macmillan, 2017), pp. 134 – 144.

⁷⁷ Deonandan et al., supra note 75.

⁷⁸ Ibid.

⁷⁹ Ibid.

⁸⁰ Shireen Hassim, Women's Organisations and Democracy in South Africa (University of Wisconsin Press, 2006), pp. 85 – 100.

opposite effect, fuelling radicalisation, strengthening internal solidarity, and increasing international support for the oppressed group.⁸¹

2. The Importance of Dialogue: Open and inclusive dialogue is essential for resolving political conflict and achieving lasting peace. By recognising the legitimacy of opposing groups and engaging in good faith negotiations, governments can create an environment conducive to compromise and reconciliation.⁸²

3. Respect for Human Rights: Respect for human rights, including freedom of expression, association, and assembly, is crucial for building a just and democratic society. Suppressing these rights violates fundamental principles of international law, undermines the legitimacy of the government, and creates fertile ground for conflict.⁸³

4. The Role of International Pressure: International pressure, including sanctions, boycotts, and diplomatic isolation, can significantly influence governments to change their policies and engage in meaningful dialogue with opposition groups. The South African experience demonstrates the power of international solidarity in the fight against injustice and apartheid.⁸⁴

62. Based on these lessons, the following recommendations can be made for handling proscription of popular organisations or resistance movements in similar contexts:

    1. Prioritise Dialogue and Negotiation: Governments should prioritise dialogue and negotiation with popular organisations, even those that espouse dissenting views. This requires listening to opposing perspectives, acknowledging legitimate grievances, and seeking common ground for compromise.⁸⁵

    2. Exhaust Peaceful Means: Governments should exhaust all peaceful means of resolving disputes before resorting to proscription or other forms of repression. This includes engaging in mediation, arbitration, and other forms of conflict resolution.⁸⁶

    3. Conflicts of the Past to be Assessed: The proscription of the ANC and the eventual liberation of Black South Africans showcase a powerful message and demonstrate that banning political organisations fuels violence, while lifting such bans transforms conflicts into peaceful political engagement. Far from protecting people, these bans provoke unrest, whereas open political activity paves the way for rule-bound, constructive disputes.

       1. The banning of the ANC and other political organisations by the apartheid government led to increased unrest and resistance. The government's use of banning orders and harassment of opponents of apartheid such as Chief Albert Luthuli resulted in legal battles and the declaration of banning orders as invalid due to legal technicalities.⁸⁷ The escalation of protest action and activists'

⁸¹ Jane Duncan, Protest Nation (University of KwaZulu-Natal Press, 2016), pp. 24 – 35.

⁸² Peter Harris and Ben Reilly (eds), Democracy and Deep-Rooted Conflict: Options for Negotiators (International IDEA, 1998), pp. 2 – 108.

⁸³ Ibid, at 51–242.

⁸⁴ Worden, supra note 3, at 131–133.

⁸⁵ Harris and Reilly, supra note 83, at 2–113.

⁸⁶ John Packer and Sally Holt, "Self-Determination and Peace Processes: Pathways and Stumbling Blocks for Conflict Resolution" in Pioneering Peace Pathways - Making Connections to End Violent Conflict (Conciliation Resources, 2020), pp. 53 - 59.

⁸⁷ Denis Goldberg, A Life for Freedom (The University Press of Kentucky, 2016), pp. 43 – 52.

scepticism about the effectiveness of non-violent resistance further fuelled the conflict, leading to a shift in approach towards transgressive contention.⁸⁸

2. The eventual liberation of Black people in South Africa, marked by the unbanning of the ANC and other resistance organisations, signified a shift towards peaceful political engagement and negotiations with the government.⁸⁹ The lifting of the ban on the ANC in 1990 and the subsequent release of Nelson Mandela and other leaders from prison paved the way for the country's first fully democratic election in 1994, which overwhelmingly selected Nelson Mandela as President.⁹⁰

4. Promote Reconciliation and Healing: Once a conflict has been resolved, it is vital to promote reconciliation and healing. This may involve truth and reconciliation commissions, reparations for victims, and other measures to address past injustices and build a more socially cohesive and inclusive society.⁹¹

THE INTERNATIONALISATION OF THE ANTI-APARTHEID STRUGGLE

63. While the ANC's proscription was intended to isolate the organisation domestically, it inadvertently contributed to the internationalisation of the anti-apartheid struggle. Forced into exile, the ANC leadership actively engaged with international organisations, governments, and civil society groups to garner support for its cause. The UN, and particularly the UN Special Committee Against Apartheid established in 1962, played a crucial role in this process, passing numerous resolutions condemning apartheid and calling for sanctions against South Africa. The OAU also provided unwavering support to the ANC, recognising it as the legitimate representative of the South African people.⁹²

64. The ANC's international campaign gained momentum in the 1980s, with growing calls for divestment from South Africa and cultural and sporting boycotts of the apartheid regime. With many countries imposing sanctions on South Africa, international pressure mounted, isolating it from the global community of nations. This international isolation, coupled with internal unrest, the armed struggle and economic decline, played a crucial role in forcing the South African government to negotiate an end to apartheid.⁹³

CHALLENGES TO APARTHEID LAWS AND THE PROSCRIPTION OF THE ANC AND OTHER POLITICAL ORGANISATIONS

65. The Suppression of Communism Act was one of the primary legislative tools used to ban organisations and individuals. Under the guise of fighting communism, the Act labelled almost any form of anti-apartheid activism as "communist" and, therefore, illegal. This broad definition

⁸⁸ Marcelle Dawson and Luke Sinwell (eds), Contesting Transformation (Pluto Press, 2014), pp. 50 – 60.

⁸⁹ Ibid.

⁹⁰ Marc Howard Ross, Culture and Belonging in Divided Societies (University of Pennsylvania Press, 2012), pp. 194 – 200.

⁹¹ Christie, supra note 46, at 94 –172.

⁹² UN General Assembly, “United Nations Special Committee Against Apartheid”, Resolution 1761 (XVII), 6 November 1962; Thuynsma, supra note 57, pp. 192 – 193.

⁹³ Frederik Willem de Klerk, The Last Trek: A New Beginning (Macmillan, 1999), p. 214.

allowed the government to proscribe theCPSA and other key liberation movements, including the ANC.

66. The Rivonia Trial of 1964 was a pivotal moment in the struggle against apartheid. Leading figures of the ANC, including Nelson Mandela, Walter Sisulu, Ahmed Kathrada and Govan Mbeki, were tried for their roles in the armed struggle. Mandela's statement during the trial, famously declaring that he was prepared to die for the ideal of a democratic and free society, provided a powerful moral justification for the ANC’s actions.⁹⁴

67. The Rivonia Trial highlighted the apartheid government’s use of legal proceedings to delegitimise the anti-apartheid struggle while simultaneously offering the accused a platform to articulate their cause. Other notable trials, such as those involving PAC leaders like Robert Sobukwe, further demonstrated the legal repression faced by anti-apartheid activists.⁹⁵

68. The ANC's proscription was not without its challenges. Lawyers and activists within South Africa and abroad challenged the ban's legality, arguing that it violated fundamental human rights and international law, the right to freedom of association, expression, assembly, and self- determination.⁹⁶

69. These challenges to the proscription of the ANC and the apartheid regime were important in highlighting the oppressive nature of apartheid laws. These challenges took various forms, both domestically and internationally, including efforts by national governments, civil society, and international organisations such as the United Nations.

INTERNATIONAL CHALLENGES AND THE UNITED NATIONS

70. Internationally, apartheid in South Africa generated interest with far greater intensity after the ANC and PAC were banned and forced underground. The Rivonia Trial of 1963 - 1964, from which Nelson Mandela and others were imprisoned for life, gained immense international coverage, with the United Nations General Assembly passing a resolution requesting the release of the prisoners by 106 to 1 (South Africa being the only dissenter).⁹⁷

71. Additionally, in 1964, South Africa was excluded from the Tokyo Olympics. It was officially expelled from the International Olympic Committee in 1970 and did not participate in this premier world sporting event until the Olympic Games in 1992.⁹⁸ This was due to the campaigns of the South African Non-Racial Olympic Committee (“SANROC”), which called for an end to racism in sport and the international isolation of racially based sporting bodies in South Africa.⁹⁹

72. Though unrelated to the proscription of the ANC, the cultural and academic boycott of South Africa, initiated by the ANC in 1958, became a central tool in the global anti-apartheid movement. Supported by the UN through Resolutions such as 35/206 in 1980, the boycott gained international momentum, urging artists, academics, and sporting and cultural

⁹⁴ Awol Allo (ed), The Courtroom as a Space of Resistance (Routledge, 2016), pp. 111 – 116.

⁹⁵ John Dugard, Human Rights and the South African Legal Order (Princeton University Press, 2015), p. 233.

⁹⁶ Ibid, at 165–202.

⁹⁷ John Nauright and others (ed), Sport in the African World (Routledge, 2018), pp. 77 – 79.

⁹⁸ Ibid, at 80–85; International Olympic Committee, “Why Was South Africa Barred from the Olympics During Apartheid?” (Olympics.com, 2024), https://olympics.com/en/news/why-south-africa-barred-from-the-olympics-apartheid, accessed on 18

November 2024.

⁹⁹ James Ciment and Kenneth Hill (eds), Encyclopaedia of Conflicts since World War II (Routledge, 2012), pp. 1161 – 1166.

institutions to sever ties with apartheid South Africa. High-profile figures like Jean-Paul Sartre and ANC’s Oliver Tambo significantly promoted the boycott. At the same time, organisations like Artists Against Apartheid and Artists United Against Apartheid raised awareness through impactful concerts and protest songs such as Sun City. These efforts symbolised global solidarity and applied moral and cultural pressure on the apartheid regime.¹⁰⁰

73. The boycott’s success lay in its ability to isolate South Africa culturally and academically, amplifying the stigma of apartheid on the world stage. High-profile anti-apartheid events like the 1986 concert at Clapham Common attended by 250 000 people, and sporting boycotts, which saw South Africa excluded from international competitions, underscored the global community’s commitment to ending apartheid. These actions, coupled with sustained grassroots activism, significantly contributed to the eventual dismantling of the apartheid system.¹⁰¹

74. The United Nations played a significant role in addressing apartheid in South Africa. From its inception in 1945, the international community closely followed developments in South Africa. Between 1952 and the early 1990s, the UN General Assembly discussed apartheid policies at every session except one. During this period, the UN General Assembly adopted resolutions condemning the racist policies of apartheid South Africa.¹⁰²

75. The resolutions passed by the United Nations illustrate the international community's commitment to eradicating apartheid and questioned the legitimacy of the South African regime. The resolutions also contributed to the formation of the customary crime of apartheid, demonstrating the opinio juris of the UN Member States.¹⁰³

76. The United Nations has issued numerous resolutions condemning apartheid, underscoring the severity with which it is regarded. Between 1946 and 1994, at least 14 (Fourteen) General Assembly resolutions explicitly recognised apartheid as a crime against humanity, alongside numerous other resolutions and declarations addressing the apartheid regime in South Africa. Additionally, the Security Council on one occasion affirmed that apartheid constituted a crime against humanity and described it as a "crime against the conscience and dignity of mankind”.¹⁰⁴

77. While these challenges were often unsuccessful in relieving the oppressed in South Africa immediately, they served to highlight the injustices of apartheid and keep the issue in the public eye. International legal scholars and human rights organisations also weighed in, condemning the proscription and apartheid generally and calling for its repeal. These challenges contributed to growing international pressure on the South African government to reform its policies.¹⁰⁵

PROSCRIPTION: OBSOLETE AND UNINTELLIGIBLE OR A GENUINE SAFETY MEASURE?

¹⁰⁰ South African History Online, “South Africa’s Academic and Cultural Boycott”, (SA History, undated), https://www.sahistory.org.za/article/south-africas-academic-and-cultural-boycott, accessed on 18 November 2024.

¹⁰¹ Ibid.

¹⁰² Carola Lingaas (ed), The Concept of Race in International Criminal Law (Routledge, 2019), p. 146.

¹⁰³ Ibid.

¹⁰⁴ Ibid, at 181.

¹⁰⁵ Enuga S. Reddy (ed), Struggle for Liberation in South Africa and International Solidarity: A Selection of Papers Published by the United Nations Centre against Apartheid (Sterling Publishers Private Limited, 1992), pp. 57, 60, 201, 208, 253, 260 and 261.

78. The concept of proscription, particularly in combating terrorism, has been a subject of debate and scrutiny.¹⁰⁶ Proscription refers to the legal banning or sanctioning specific groups or organisations, often to prevent, deter, and disrupt terrorist activities.¹⁰⁷ However, growing concerns about the unintended consequences and limitations of proscription are leading to calls for its obsolescence.¹⁰⁸ The following discussion will explore the criticisms and limitations of proscription, its impact on civil society and peace processes, and the historical ineffectiveness of this approach, as supported by the sources provided.

79. Criticisms and Limitations of Proscription: Proscription has been criticised for potentially infringing on fundamental rights, including freedom of association, expression, and speech.¹⁰⁹ This raises concerns about balancing liberty and security, particularly in liberal democratic societies. Additionally, there are doubts about the effectiveness of proscription in attenuating terrorist violence, with suggestions that it may have symbolic rather than directly instrumental outcomes.¹¹⁰ Critics have also highlighted the abuse of power and political suppression associated with proscription, as it can be used to silence dissent and opposition, undermining political pluralism.¹¹¹

80. Impact on Civil Society and Peace Processes: Proscription's impact on civil society and peace processes has been a subject of concern. It has been observed to have a chilling effect on civil society, discouraging participation in public life.¹¹² Furthermore, it has led to restrictions on non-governmental organisations (“NGOs”) engaging with listed groups, making it increasingly difficult for them to organise meetings or training sessions with these groups.¹¹³ This has implications for achieving successful peace processes, as proscription reduces the pool of people that armed groups can engage with and makes the work of third-party actors more dangerous and politically delicate.¹¹⁴

81. Historical Ineffectiveness: Historical examples have demonstrated the ineffectiveness of proscription in achieving its intended goals. There are concerns that proscription fails to fulfil its preventive purpose and that its relevance and effectiveness in the struggle against terrorism have yet to be demonstrated.¹¹⁵ Additionally, the case of the European Union proscription regime listing groups in the middle of peace talks in countries such as the Philippines, Colombia, and Sri Lanka has been cited as evidence of the limited ability of proscription to engender behavioural changes.¹¹⁶

82. In addition to the above, it also has been argued:

    1. Creation of 'Suspect Communities’: Proscription can stigmatise and criminalise entire communities associated with proscribed groups, fostering alienation and mistrust. This

¹⁰⁶ Lee Jarvis and Tim Legrand, “Legislating for Otherness: Proscription Powers and Parliamentary Discourse”, Review of International Studies, 42 (2016), pp. 2 and 26.

¹⁰⁷ Lee Jarvis and Tim Legrand (ed), The Proscription of Terrorist Organisations (Routledge, 2020), p. 3.

¹⁰⁸ Jarvis and Legrand, supra note 108, p. 4.

¹⁰⁹ Lee Jarvis and Tim Legrand, “’I am somewhat puzzled’: Questions, Audiences and Securitisation in the Proscription of Terrorist Organisations”, Security Dialogue, (2017) 48(2), 149 at 1 - 8.

¹¹⁰ Jarvis and Legrand, supra note 108, at 1–8.

¹¹¹ Ibid, p. 2 – 4.

¹¹² Ibid, p. 2 – 6.

¹¹³ Ioannis Tellidis and Harmonie Toros (eds), Terrorism: Bridging the Gap with Peace and Conflict Studies (Routledge, 2016), pp. 204 – 206.

¹¹⁴ Ibid, at 193 – 195.

¹¹⁵ Jarvis and Legrand, supra note 108, pp. 1 – 3.

¹¹⁶ Tellidis and Toros, supra note 114, pp. 204 – 206.

dynamic deepens social divides and perpetuates a 'guilt by association' mentality, undermining social cohesion.¹¹⁷

2. Counterproductive to Security: Rather than enhancing security, proscription can have the opposite effect. By delegitimising certain groups, it risks breeding resentment within marginalised or oppressed communities, which may fuel ongoing conflicts and drive further radicalisation.¹¹⁸

3. Ineffectiveness Against Fluid Organisations: Many contemporary terrorist groups are highly fragmented and lack organisational stability. Proscription does not effectively account for this dynamic, limiting its long-term utility in addressing such adaptive threats.¹¹⁹

4. Threat to Democratic Processes: Proscription decisions are often dominated by the executive authority, with minimal parliamentary oversight. This imbalance raises serious concerns about the erosion of democratic accountability and the undermining of legislative scrutiny.¹²⁰

5. Symbolic Rather than Substantive: Proscription frequently functions as a symbolic act, signalling a tough stance on terrorism. However, its practical utility in addressing and resolving the underlying issues of violence and terrorism is often limited.¹²¹

83. In conclusion, the criticisms and limitations of proscription as evidenced by the sources provided, raise significant concerns about its effectiveness and impact on civil society and peace processes. These considerations support the argument that proscription is an archaic concept that should be rendered obsolete, as it fails to achieve its stated purpose.

THE ANC AND THE EVOLUTION OF DOMESTIC AND INTERNATIONAL LAW

84. The ANC's struggle against apartheid played a significant role in the evolution of international law, particularly in human rights and self-determination.¹²² The ANC's advocacy for the recognition of the right to self-determination as a fundamental human right contributed to the development of international norms and standards in this area. The ANC's experience also highlighted the importance of international co-operation and solidarity in the fight against oppression.¹²³

85. The ANC's struggle against the apartheid regime was a catalyst in international law, particularly regarding the global recognition of apartheid as a crime against humanity. Through its diplomatic engagements and advocacy at international forums, the ANC was instrumental in

¹¹⁷ Jarvis and Legrand, supra note 107, pp. 7 – 8.

¹¹⁸ Jarvis and Legrand, supra note 107, p. 8.

¹¹⁹ Ibid.

¹²⁰ Jarvis and Legrand, supra note 107, p. 23.

¹²¹ Jarvis and Legrand, supra note 107, p. 22.

¹²² Enuga S. Reddy (ed), Apartheid, South Africa and International Law: Selected Documents and Papers (New York, 1985), pp. 4, 9, 14 – 17, 34, 74 – 78 and 148 – 149; Reddy, supra note 105 pp. 4 – 5, 250 – 253 and 260 – 262; John Dugard, *International Law: A South African Perspective* (Juta, 2018), pp. 784 – 792.

¹²³ Thuynsma, supra note 57, pp. 187 – 190; International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into force 18 July 1976), 1015 UNTS 243; Rome Statute of the

International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002), 2187 UNTS 3, art 7(1)(j).

raising awareness about the injustices of apartheid. This advocacy influenced the UN to adopt resolutions that defined apartheid as a crime against humanity.¹²⁴

86. The intellectual and moral resistance against apartheid profoundly influenced the evolution of South African domestic law and international human rights standards. Through his seminal work, "Soft Vengeance of a Freedom Fighter", Justice Albie Sachs provides a compelling reflection on the interplay between personal suffering and the broader struggle for justice. His advocacy for a legal system grounded in human dignity and equality laid the groundwork for South Africa's transformative constitutional development.¹²⁵

87. Justice Albie Sachs, now a retired Judge of South Africa’s Constitutional Court, is a renowned South African activist, judge, and writer, who played a key role in shaping the country's post- apartheid legal landscape. He fought bravely against apartheid, paying a high price for his courage. In addition, his jurisprudence reflects themes of storytelling, ubuntu (compassion and humanity), an ethic of care, reconciliation, and restoration.¹²⁶

88. He also believes in the importance of human rights and the need for the government to respect and protect them. He emphasises the role of rights in alleviating suffering and advancing principles of social justice.¹²⁷

89. His contributions to the evolution of the Constitution of the Republic of South Africa are significant, as he recognises the absence of legal certitudes and embraces the messiness and uncertainty of humanity. He believes that the law should show compassion towards the people it serves, unlike the oppressive role it played during apartheid.¹²⁸

90. Judge Sachs' jurisprudence and life story portray him as a sensitive and caring freedom fighter and a poetic judge who infuses the Constitution with an ethic of care.¹²⁹

91. Judge Albie Sach’s morality and democratic views have filtered through various Judgments which he contributed to in South Africa’s apex Court, being the Constitutional Court of South Africa, some of which include:

S v Makwanyane and Another 1995 (3) SA 391 (CC):

Contribution: Justice Albie Sachs was instrumental in this landmark Constitutional Court decision that abolished the death penalty in South Africa. The Court held that the death penalty was incompatible with the Constitution’s guarantees of human dignity, equality, and the right to life.¹³⁰

¹²⁴ Lingaas, supra note 103, at 181.

¹²⁵ Drucilla Cornell, Karin van Marle and Albie Sachs (ed), Albie Sachs and Transformation in South Africa (Birkbeck Law Press, 2014), pp. 75 – 113.

¹²⁶ Narnia Bohler-Muller and Thobekile Zikhali, “Infusing the Constitution with an Ethic of Care: The Humane Jurisprudence of Justice Albie Sachs” in Charles M Fombad (ed), Making the Road by Walking: The Evolution of the South African Constitution (Pretoria University Law Press, 2020), https://www.pulp.up.ac.za/images/edocman/legal- dialogues/making_the_road_by_walking/Chapter%207%20Making%20the%20Road.pdf, accessed on 18 November 2024,

at 155 – 158.

¹²⁷ Ibid, at 162.

¹²⁸ Ibid, at 163.

¹²⁹ Ibid, at 155–157.

¹³⁰ S v Makwanyane and Another 1995 (3) SA 391 (CC) para 262.

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC):

Contribution: Justice Sachs highlighted that ubuntu serves as a central theme within the Bill of Rights, representing a structured and operational expression of the values of human interdependence, mutual respect, and compassion in South Africa's evolving society.¹³¹

S v M (CCT 53/06) [2007] ZACC 18:

The Court was presented with a case involving a woman, referred to as M, who was facing imprisonment for repeated credit fraud offenses. Initially, Sachs intended to dismiss the case; however, after discussions with his colleagues, he discovered that M was a single mother of three teenagers residing in an area plagued by high levels of gang activity, drug- related issues, and violence. Additionally, M owned and operated two small businesses and served on the school governing board. Motivated by the children's right to parental care, Justice Sach’s, in his judgment, prioritized their best interests, emphasising that "the foundation of the right to childhood lies in promoting the right to live, as much as possible, in a secure and nurturing environment free from violence, fear, deprivation, and avoidable trauma".¹³²

92. Justice Albie Sachs played a transformative role in shaping South Africa's constitutional jurisprudence, emphasizing the values of human dignity, equality, and ubuntu. His judgments reflect a profound commitment to balancing individual rights with broader societal needs, fostering a compassionate and inclusive legal framework. Through his work, Sachs contributed significantly to embedding the Constitution’s vision of justice and humanity in South African society.

93. Similarly, Steve Biko's writings, particularly in "I Write What I Like," articulated the philosophy of Black Consciousness, which played a pivotal role in mobilising Black South Africans to reclaim their identity and resist apartheid's dehumanising effects. His ideas fuelled the resistance movement and influenced the global civil rights movement and self-emancipation dialogues.

94. Adding to these intellectual legacies, Archbishop Desmond Tutu through his book, "No Future Without Forgiveness", and his leadership of the TRC, advocated for a unique model of restorative justice, which sought to heal the nation by reconciling with its oppressive past. Tutu's approach has been studied worldwide as a benchmark in addressing historical injustices through the lens of forgiveness and reconciliation.¹³³

95. The apartheid government's criminalisation of political activities resulted in a surge of prison autobiographies, reflecting the experiences of political prisoners and their resistance to apartheid.¹³⁴

96. The establishment of the TRC in 1996 rejected the "Nuremberg model" of retributive justice. Instead, it advocated for a restorative justice model, acknowledging the need for practical measures to enable the two warring sides to find common ground. This approach was driven

¹³¹ Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 37.

¹³² S v M (CCT 53/06) [2007] ZACC 18 paras 17 – 20 and 101; Jackie Kemp, “Life Sentences”, (The Guardian 1 July 2009),

https://www.theguardian.com/society/2009/jul/01/albie-sachs-interview-childrens-rights, accessed on 26 December 2024.

¹³³ Joan Wallach Scott, In the Name of History (Central European University Press, 2019), pp. 31– 69.

¹³⁴ David Attwell and Derek Attridge, The Cambridge History of South African Literature (Cambridge University Press, 2012), pp. 552 – 561.

by the understanding that neither side could impose victor's justice due to the absence of a decisive victory. This led to a negotiated settlement between the enforcers of apartheid and the resistance movements.¹³⁵

97. Separately, international solidarity movements supported the ANC's efforts and further influenced international perspectives on apartheid. These movements, comprising activists and governments from around the world, organised boycotts, sanctions and protests that highlighted the plight of South Africans under apartheid. Their actions kept international attention focused on apartheid and supported the implementation of sanctions against the South African government. This global pressure was vital in legitimising the ANC's struggle and hastening the downfall of the apartheid regime.¹³⁶

98. The Rome Statute, adopted in 1998, marked a significant milestone for international law by establishing the International Criminal Court (“ICC”) and codifying crimes against humanity, including apartheid. It affirmed apartheid as a grave violation under customary international law and international treaties, expanding its recognition beyond South Africa to encompass institutionalised racial discrimination worldwide. The Statute provides a framework for prosecuting individuals responsible for such crimes, reinforcing the principles of accountability and universal jurisdiction in addressing gross human rights violations. Through this, the Rome Statute strengthens international justice mechanisms and underscores the global commitment to combatting systemic oppression and inequality.¹³⁷

99. As a culmination of the ANC's struggle, the ANC-led government signed the Rome Statute on

17 July 1998 and confirmed its ratification on 27 November 2000.¹³⁸

LEGACY OF THE STRUGGLE ENDURED BY THE ANC AND CONCLUDING REMARKS

100. The proscription of the ANC is a critical juncture in South Africa’s history of resistance against apartheid. Whilst intended to marginalise and dismantle the organisation, this repressive measure inadvertently bolstered the ANC's determination, catalysing a shift towards armed resistance and cultivating domestic and international solidarity. The relentless denial of political participation to the majority population and the criminalisation of their aspirations for self- determination exposed the apartheid regime's moral and legal deficiencies.

101. Principles of international law, particularly the right to self-determination, exposed the fundamental illegitimacy of proscribing a liberation movement like the ANC. The apartheid government’s reliance on legislation such as the Suppression of Communism Act and the Unlawful Organisations Act only deepened global condemnation, amplifying calls for sanctions and isolation. These measures underscored the ANC's struggle as a just cause and galvanised international efforts to dismantle apartheid.

¹³⁵ Scott, supra note 133, p. 130.

¹³⁶ South African History Online, “South Africa’s Academic and Cultural Boycott”, (SA History, undated) https://www.sahistory.org.za/article/south-africas-academic-and-cultural-boycott, accessed on 18 November 2024.

¹³⁷ John Dugard, “The Convention on the Suppression and Punishment of the Crime of Apartheid”, (United Nations Audiovisual Library of International Law, 2008), pp. 2 – 3.

¹³⁸ Parliamentarians for Global Action, “South Africa and the Rome Statute”, (pgaction.org, n/d), https://www.pgaction.org/ilhr/rome-statute/south-africa.html, accessed on 18 November 2024.

102. As the apartheid regime faltered under escalating domestic resistance, economic decline, armed resistance, and diplomatic pressure, the unbanning of the ANC in 1990 represented a momentous shift from resistance to a process of reconciliation. This underscored the failure of repression to maintain an unjust system and emphasised the necessity of inclusive dialogue in achieving peace and justice. This transition marked the beginning of a negotiated settlement that culminated in the 1994 democratic elections and the establishment of a constitutional democracy committed to equality, human dignity and fundamental human rights.

103. The historical context of the ANC's struggle against apartheid and the eventual liberation of Black people in South Africa highlights the impact of banning political organisations on fuelling violence and the transformation of conflicts into peaceful political engagement upon lifting such bans. The shift from passive resistance to active mobilisation and armed conflict after the banning of political organisations and the subsequent liberation of Black people demonstrates the complex interplay between political repression, resistance, and the eventual transition to peaceful political engagement and the establishment of a constitutional democracy.

SUBMISSION ON THE PROSCRIPTION OF HAMAS BY THE UK GOVERNMENT AND REASONS WHY DEPROSCIPTION IS THE MOST BENEFICIAL OUTCOME FOR ALL PARTIES

104. The historical experience of the ANC as a liberation movement during the apartheid era from 1948 to1994 provides a critical lens through which to view the proscription in 2021 of Hamas by the United Kingdom (“UK”).¹³⁹

105. Similar to the ANC between 1960 and 1990, Hamas finds itself proscribed as a “terrorist” organisation in the UK, essentially delegitimising its identity and blocking its participation in any meaningful political process.¹⁴⁰ This approach has been shown to be counterproductive as evidenced by the eventual unbanning of the ANC, which opened the door to actual negotiations and the dismantling of apartheid.¹⁴¹ The UK ban on Hamas mirrors the failures of the past, as proscription tends to fuel violence as opposed to fostering peace; it does so by shutting down dialogue and entrenching hard-line stances.¹⁴²

106. In the South African context, the banning of the ANC did not quell opposition to apartheid.¹⁴³ Instead, it intensified resistance, forced the movement underground, and strengthened more radical elements, as the regime’s refusal to negotiate left no peaceful avenue for change.¹⁴⁴ The labelling of the ANC and its armed wing, MK, as “terrorists” simply validated the view that non- violent means had little effect on a regime that denied fundamental human rights and operated under a system of racial supremacy.¹⁴⁵ In a similar vein, the proscription of Hamas reinforces the view that peaceful negotiations are not possible. By refusing to engage or even acknowledge

¹³⁹ UK Home Office, “Proscribed Terrorist Groups or Organisations”, (Policy Paper, updated 26 April 2024), https://www.gov.uk/government/publications/proscribed-terror-groups-or-organisations--2/proscribed-terrorist-groups-or- organisations-accessible-version#contents, accessed on 14 December 2024.

¹⁴⁰ Daniel Kirkpatrick, Political Expression and Conflict Transformation in Divided Societies: Criminalising Politics and Politicising Crime

(Routledge, 2020), pp. 37 – 45.

¹⁴¹ Marc Howard Ross, Culture and Belonging in Divided Societies (University of Pennsylvania Press, 2012), pp. 194 – 200.

¹⁴² Hugh Lovatt, “Why the UK’s Blacklisting of Hamas Hurts Its Own Peace Policy”, (ECFR, 6 December 2021), https://ecfr.eu/article/why-the-uks-blacklisting-of-hamas-hurts-its-own-peace-policy/, accessed on 14 December 2024.

¹⁴³ Leonard Thompson, A History of South Africa (Yale University Press, 1990), pp. 230 – 282.

¹⁴⁴ Kirkpatrick, supra note 140.

¹⁴⁵ Peter Harris and Ben Reilly (eds), Democracy and Deep-Rooted Conflict: Options for Negotiators (International IDEA, 1998), pp. 2 – 108.

Hamas’ evolving stance since at least 2006 - Hamas indicated a willingness to consider a two- state solution - Israel and its allies foreclose the possibility of meaningful discussions that could lead to a viable resolution to the Palestinian – Israeli conflict.¹⁴⁶

THE PROBLEM WITH PROSCRIPTION AND THE LESSONS FROM THE ANC EXPERIENCE

107. Proscription, whether against the ANC in the past or Hamas today, generates multiple negative consequences. First, it tends to fuel radicalisation. When a group is banned, moderate or potentially moderate voices within it lose credibility, as engagement with them is not possible.¹⁴⁷ This intensifies militancy within the movement as the door to negotiations is slammed shut. The ANC’s experience proved that outlawing peaceful protest and criminalising political organisations only confirmed that armed struggle was the last resort.¹⁴⁸ The psychological impact of being labelled “terrorists” hardened attitudes and undermined the possibility of political compromise, reinforcing an “us versus them” mentality.¹⁴⁹

108. Proscription also undermines the rule of law and damages the legitimacy of the banning government in the eyes of both domestic and international audiences. In the South African case, global solidarity and external pressure grew stronger as the ANC was portrayed as a victim of unjust persecution and as an organisation legitimately fighting for freedom against a racist regime.¹⁵⁰ By banning the ANC, the apartheid government ironically enhanced the movement’s international standing and credibility.¹⁵¹ Once the ban was lifted, the ANC could operate openly and freely, and engage in structured negotiations, proving that dialogue and legitimate political participation are much more effective in achieving lasting peace than marginalisation and criminalisation.¹⁵²

HAMAS, APARTHEID ALLEGATIONS, AND THE RIGHT TO RESIST UNDER INTERNATIONAL LAW

109. In the case of Hamas, it is essential to recognise the broader legal and moral environment. The International Court of Justice (“ICJ”) has recently declared Israel’s ongoing occupation of Palestinian territory as unlawful.¹⁵³ UN experts, as well as credible human rights organisations, have condemned Israel’s policies as amounting to apartheid, acknowledging systematic discrimination and oppression against Palestinians.¹⁵⁴ International law grants peoples under

¹⁴⁶ Lovatt, supra note 142.

¹⁴⁷ Ioannis Tellidis and Harmonie Toros (eds), Terrorism: Bridging the Gap with Peace and Conflict Studie, (Routledge, 2016), pp. 204 – 206.

¹⁴⁸ Harris and Reilly, supra note 145.

¹⁴⁹ Shireen Hassim, Women's Organisations and Democracy in South Africa (University of Wisconsin Press, 2006), pp. 85 – 100.

¹⁵⁰ Willem P. Esterhuyse, "The International Political Status of the African National Congress", Africa Insight, 19.1 (1989), pp. 34 – 45.

¹⁵¹ Ross, supra note 141.

¹⁵² UK Home Office, supra note 139.

¹⁵³ Office of the High Commissioner for Human Rights (OHCHR), “Experts Hail ICJ Declaration on Illegality of Israel’s Presence in Occupied Territories”, (OHCHR, 30 July 2024), https://www.ohchr.org/en/press-releases/2024/07/experts- hail-icj-declaration-illegality-israels-presence-occupied, accessed on 14 December 2024.

¹⁵⁴ Amnesty International, “ICJ Opinion Declaring Israel’s Occupation of Palestinian Territories Unlawful Is Historic

Vindication of Palestinians Rights”, (Amnesty International, 19 July 2024),

colonial or alien domination a right to self-determination and, at times, the right to resist such domination.¹⁵⁵ Just as the Black majority in South Africa rightfully resisted apartheid — a system of White supremacy — so too do Palestinians have a moral and legal claim against what has been described as a Zionist ideology rooted in Jewish supremacy over the indigenous population, echoing the oppressive structures of apartheid South Africa.

110. Deproscribing Hamas would recognise that conflicts like these are inherently political and require political solutions. It would not be an endorsement of all of Hamas’ tactics, just as unbanning the ANC was not an endorsement of violence. Instead, it would acknowledge Hamas’ centrality to the political landscape in Gaza and its significant support base.¹⁵⁶ By permitting Hamas to operate openly, potential pathways emerge for diplomatic engagement. This would compel Israel, which has been shielded by a narrative that it does not negotiate with “terrorists”, to confront the genuine political grievances of the Palestinian people. Failure to do so perpetuates violence, as seen by the repeated cycles of violent conflict where proportionality and civilian protection have been disregarded.¹⁵⁷

111. Scholars have noted that proscription decisions may often reflect a state’s foreign policy interests and economic alliances rather than objective criteria.¹⁵⁸ In this view, the decision of the UK to ban Hamas may be seen as an attempt to avoid pressuring Israel into negotiations and undermining the two-state solution framework that Hamas has expressed willingness to explore.¹⁵⁹ By remaining resolutely on one side, the UK tacitly colludes in the ongoing occupation, much like those who once supported the apartheid regime and ignored the legitimate grievances of the oppressed.¹⁶⁰ Various academics have criticised such bans, noting that they undermine the potential for conflict resolution and ignore lessons learned from comparable struggles.¹⁶¹

112. As in the South African experience, external pressure and international solidarity eventually forced the apartheid regime to engage with the ANC and thus end the cycle of state violence and banned opposition.¹⁶² Lifting the ban on the ANC enabled a platform for genuine dialogue. Similarly, removing Hamas from the proscribed list would open space for negotiations and moderating influences to take hold.¹⁶³ In the long run, ensuring that all political forces — especially those representing a significant portion of the Palestinian population — can engage in the political arena is more conducive to stability and lasting peace.

https://www.amnesty.org/en/latest/news/2024/07/icj-opinion-declaring-israels-occupation-of-palestinian-territories- unlawful-is-historic-vindication-of-palestinians-rights/, accessed on 14 December 2024.

¹⁵⁵ United Nations General Assembly Resolution 2649 (XXV) (29 November 1970), UN Doc A/RES/2649 (XXV).

¹⁵⁶ Robertson K, “What Is Hamas?” (Council on Foreign Relations, 17 October 2024), https://www.cfr.org/backgrounder/what-hamas, accessed on 14 December 2024.

¹⁵⁷ Human Rights Watch, “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution”, (27 April 2021), https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-

persecution, accessed on 14 December 2024.

¹⁵⁸ Lee Jarvis and Tim Legrand (ed), The Proscription of Terrorist Organisations (Routledge, 2020), p. 3.

¹⁵⁹ Ahmed Abu Artema, “The UK Government Is on the Wrong Side of History Again”, (Al Jazeera Opinion, 25 November 2021) https://aje.io/brd9mg, accessed on 14 December 2024.

¹⁶⁰ Frederick Deknatel, “The Global Impact of the ICJ Ruling on Israel: A Democracy in Exile Roundtable”, (DAWN, 9 February 2024), https://dawnmena.org/the-global-impact-of-the-icj-ruling-on-israel-a-democracy-in-exile-roundtable/,

accessed on 14 December 2024.

¹⁶¹ Lee Jarvis and Tim Legrand, “Legislating for Otherness: Proscription Powers and Parliamentary Discourse”, Review of International Studies, 42 (2016), pp. 2 and 26.

¹⁶² Thompson, supra note 143.

¹⁶³ Tellidis & Toros, supra note 147.

CONCLUSION: DIALOGUE AS THE PATH TO RESOLUTION

113. The historical record is unambiguous: proscription failed to bring peace to South Africa. Instead, it hardened conflict lines and convinced liberation movements that violence was the only avenue left. Only the unbanning of the ANC allowed for constructive dialogue that dismantled apartheid and brought about democratic governance.¹⁶⁴ In the present context, the proscription of Hamas mirrors the same failed strategy, making it easier for Israel to refuse dialogue and perpetuate the unlawful occupation of Palestinian lands.

114. Deproscribing Hamas would be a vital step towards acknowledging the need for meaningful negotiation, respecting the Palestinian right to self-determination, and encouraging a political challenge to the status quo.¹⁶⁵ This shift could lead to a similar outcome as in South Africa - transforming a previously banned movement into a legitimate actor in shaping a just and durable solution to the Palestinian – Israeli conflict. As with the ANC, lifting the ban on Hamas has the potential to help transform the conflict from violent confrontation into a rule-bound and constructive political engagement.¹⁶⁶ History, common sense, and legal principles suggest that dialogue — not proscription — is the pathway to ending the cycle of violence and paving the way for peace.

EXPERT OBLIGATIONS

115. I confirm that I have made clear which facts and matters referred to in this Report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

116. I understand that proceedings for contempt of court may be brought by anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

117. I confirm that I have not received any remuneration for preparing this Report.

Electronic signature

Dr Ismail Vadi

[Place of Profession: Johannesburg] [Johannesburg]

[South Africa]

28 December 2024

¹⁶⁴ Harris & Reilly, supra note 145.

¹⁶⁵ John Packer and Sally Holt, "Self-Determination and Peace Processes: Pathways and Stumbling Blocks for Conflict Resolution" in Pioneering Peace Pathways - Making Connections to End Violent Conflict (Conciliation Resources, 2020) pp. 53 - 59.

¹⁶⁶ Thompson, supra note 143; Ross, supra note 141.