14. Telegram From the Department of State to the Embassy in South Africa 1
129016. Subj: SWA, BOSS, TA Trial II.
1. Acting Secretary Richardson yesterday called in Ambassador Taswell and delivered strong protest application BOSS, TA, SWA Affairs Act, etc. to SWA. At same time protested treatment Codel’s visa applications. Report conversation both matters by separate cable.2 Following text aide-mémoire handed Ambassador on SWA:
Qte: The Government of the United States has noted the passage by the South African Parliament of the General Law Amendment Act of 1969 and, in particular, notes that clauses 10 and 29 of this Act apply to the international territory of SWA.3 Such application lacks proper legal basis, since SA has forfeited its right to administer the territory, for which direct responsibility rests in the United Nations.
It is a matter of additional concern to the Government of the United States that the clauses in question are of such nature as to contravene important rights of the inhabitants. Such rights continue to demand respect and could not have been divested or diminished by reason of South Africa’s forfeiture of its own rights in the territory. The Government of the United States is particularly concerned that clause 10, which amends the Official Secrets Act and is applicable to South West Africa, makes unlawful the communication or publication “in any manner or for any purpose prejudicial to the safety or interests of the Republic” of any information relating to any “security matter.” Security matter is very broadly defined as “any matter relating to the security of the Republic.” It specifically includes “any matter dealt with by or relating to the relationship subsisting between any person and the said Bureau.” By its very generality clause 10 is suppressive of freedom of information in and concerning South West Africa, which is essential to the development of free institutions and to the well-being and self-government of the inhabitants.
Clause 29 prevents the introduction before any court or “any body or institution established by or under any law” of any evidence or in[Page 24]formation in matters where the Prime Minister, any functionary authorized by him, or any other Minister, certifies a claim of executive privilege on the basis of state or public security. It necessarily follows that any person involved in an administrative, or possibly even a legislative proceeding, or litigating a civil matter in court, as well as any accused in a criminal proceeding, will be barred, upon the requisite unreviewable certification, from presenting information which could be essential to a fair outcome or adjudication. Clause 29 is thus in derogation of the rule of law and injurious to the well-being of the inhabitants.
Without addressing itself to the question of the implications of clauses 10 and 29 for South Africa’s obligations in respect to matters other than South West Africa, the Government of the United States wishes to make clear that it considers their enactment contrary to South Africa’s international obligations with regard to South West Africa and in contravention of the rights vested in the inhabitants by the Covenant of the League of Nations, the Mandate Agreement and the Charter of the United Nations. Moreover, extension to South West Africa of South African legislation so arbitrary and restrictive in nature cannot fail further to arouse international tensions to the prejudice of friendly and cooperative relationships.
The Government of the United States therefore urges the South African Government to take account of the implications of this legislation and reconsider and withdraw its application to the international territory of South West Africa.
Certain earlier communications from the Government of the United States to the Government of South Africa concerning legislation made applicable to the international territory of South West Africa conveyed views and put questions in the hope that they might be productive both of dialogue and developments consistent with the interests of the inhabitants of that territory. A list of such communications is attached.
On the present occasion the Government of the United States wishes to reiterate the concerns expressed in these communications and in its recent oral representations concerning the South West Africa Affairs Act of 1969, as well as concerning the continuing application to South West Africa of the Terrorism Act of 1967, as evidenced by the current trial at Windhoek and detentions of South West Africans under that Act.
The Government of the United States hopes that an early response by the Government of South Africa to its past and present observations, inquiries and requests may help to advance a constructive exchange of views on the international territory of South West Africa.
Attachment: List of certain representations made by the Government of the United States to the Government of the Republic of South [Page 25]Africa concerning the international territory of South West Africa (1967–1969).4
- 1. Aide-mémoire. Delivered at Pretoria, December 16, 1967
- 2. Aide-mémoire. Delivered at Washington, D.C., February 10, 1968
- 3. Aide-mémoire. Delivered at Cape Town, April 2, 1968
- 4. Aide-mémoire. Delivered at Washington, D.C., May 3, 1968
- 5. Note (No. 287) Delivered at Pretoria, January 14, 1969
End of aide-mémoire.
- Source: National Archives, RG 59, Central Files 1967–69, POL 23–5 S AFR. Confidential. Drafted by Runyon, cleared in AF/S in draft, and approved by Runyon. Repeated to Helsinki, London, Lusaka, Ottawa, Rome, Stockholm, Geneva, USUN, Cape Town, Durban, and Johannesburg.↩
- Telegram 130093 to Pretoria, August 5, transmitted the substance of Document 13. (National Archives, RG 59, Central Files 1967–69, POL 23–5 S AFR)↩
- See footnote 3, Document 13.↩
- The text of the February 10, 1968, aide-mémoire is in telegram 113548 to Cape Town, February 10. (National Archives, RG 59, Central Files 1967–69, POL 29 SW AFR) The text of the May 3, 1968, aide-mémoire is in telegram 158297 to Athens, May 3. (Ibid., POL 19 SW AFR) The others were not found.↩