Genocide, gender and the pursuit of justice
- Wits University
Navanethem ‘Navi’ Pillay already has 17 honorary degrees but “it’s always precious when you get it from home”, she says.
Wits awarded an honorary doctorate to the distinguished and renowned South African jurist and human rights advocate at the University’s first graduation ceremony of 2022 on 20 April.
The story of how a child born in Durban who grew up in the slums of Clairwood, KwaZulu-Natal, with no books, no newspapers, no radio, and no one speaking English at home, is one to which many of this cohort of graduands can relate.
“I tell this story all over the world and it’s very new to them – it’s not new to South Africans – we all come from deprivation, discrimination and poverty,” said the 80-year-old former United Nations (UN) High Commissioner for Human Rights.
Getting from there to here
Where ever she has spoken at universities internationally, Pillay is always asked, ‘how did you get from there to here?’
“That question is so loaded, because you could see the underlying thinking there – that ‘you’re black, you’re poor, you’re a woman, you come from apartheid South Africa’ … People are intrigued that we grew up under apartheid and managed to get an education,” says the a BA LLB graduate of the former University of Natal (now UKZN).
Pillay’s father was a bus driver and her mother an uneducated home-maker who was not allowed to go to school because her father said that if she learns to read and write, she’ll write letters to boys.
“This was before the iPhone days and so [my mother] was forced into an early marriage,” says Pillay, whose grandfather was an indentured sugar cane labourer whom British sugar cane plantation owners brought to South Africa on contracts – a practise that Mahatma Gandhi described as slavery.
Pillay’s grandfather lost both his arms in a sugarcane mill accident. The disability forced him to take his son (Pillay’s father) out of school and put him to work at the age of eight. When the boy was sixteen, his father lied to pass him off as 21 so that his son could secure a heavy duty driver’s license.
“So you can see how old the story of corruption is,” quipped Pillay. “And this is how my father became a bus driver the entire length of his life with no schooling.”
Perseverance despite poverty
When Pillay was a little girl, her grandfather predicted that she would be a lawyer someday – “I must have made some smart-ass comment to him” – and this became her dream, but the family joke. No one anticipated that a black, South African girl who came from deprivation, discrimination and poverty could overcome such obstacles.
The day-to-day struggle was real; Pillay recounts the story of a teacher who discouraged her when she told him she wanted to be a lawyer. The teacher said, ‘Oh, your father must have a lot of money to send you to university.’
“I’m sure you’ve also heard these kinds of discouraging statements,” she told graduands. “Thinking back, I could see that what moves us is confidence and faith in ourselves, a willingness to work hard, and parents who appreciate the value of education.”
Mandela's tin teacup
Pillay got to go to university because the poor community she grew up in contributed their cents and their R2 coins – “The school went to them and said ‘we have a girl with potential and we should send her to university’”.
Pillay went to university and graduated but her struggles were far from over. The university registrar refused to help the 24-year-old law graduate secure articles, because she ‘could not have authority over white staff’. He suggested she try teaching.
“I went from law firm to law firm, who were mainly white in those days [1965] and I was trebly discriminated against. One for being black and two on class – ‘does your father have a lot of money, can he introduce business here?’ – and gender, ‘Oh, you’re a woman – what if you fall pregnant?’”.
Pillay recalls reading how former President Nelson Mandela obtained articles in 1941. He was accepted as a candidate attorney at a white law firm to which Walter Sisulu introduced him.
“What surprised me was when I read that the firm told him that he was not allowed to use the teacups meant only for white staff, that he should bring his own metal cup to drink tea. And one of the lawyers told him that if he wanted to be successful as a lawyer, he should not try to rise above his status. Twenty-five years later, there I was experiencing those same obstacles.”
A spirit of Ubuntu
A graduate but unemployed, Pillay was forced to look for alternatives. In 1967, she became the first black woman in Natal to open her own law practice where she would provide legal assistance to anti-apartheid activists.
“I started my own law practice and it became such news – this time it was the men lawyers who said ‘well you’re a woman you will not be able to manage a law firm, you’re being very presumptuous’.”
But the practice thrived and once again alumni, comrades and community stepped in to help and support.
“I think we got where we were because we were in a mixed university and we helped one another,” says Pillay. “African lawyers with whom we were educated at Natal University helped me by passing on cases. And I was deeply touched when our late Chief Justice Pius Langa and Justice Zak Yacoob told me that I’d given them first briefs as newly enrolled advocates. I would like to see that spirit again – that we get over our differences, we respect diversity, and we help one another.”
As an advocate for survivors of gender-based violence, Pillay’s practice also assisted many survivors of gender-based violence. She co-founded the Advice Desk for the Abused and ran a shelter for victims of domestic violence at a time when little else was available to these women.
A serious message from Robben Island
During her 28 years of practice, Pillay contributed to exposing the use of torture on detainees in police custody and the effects of solitary confinement. She also worked to secure the rights of prisoners on Robben Island, in particular the right of access to lawyers.
It was after a visit to her clients, the late Harry Gwala and 10 others of the ANC who were found guilty of terrorism, that Pillay went to Harvard University to pursue a LLM degree.
“I went to see them [the accused] on Robben Island [prison] when they lost their appeal, and I really felt guilty. I thought I’d done such a poor, hopeless job as an attorney. But there they were, serving life sentences, and they encouraged me: ‘Take our court records’, they said, ‘go to the United States and see if the judges there would convict on this kind of evidence that has been obtained through torture’. So this is how I got to Harvard, but with a serious message in mind”.
Equipped with a scholarship established by Harvard students, who wanted the university to disinvest and respect sanctions against apartheid SA, and which had never had a black student, Pillay went to the US and earned her LLM in 1982 followed by a Doctor of Juridical Science (S.J.D.) – Harvard’s most advanced law degree – in 1988. She was the first South African to be awarded a legal doctorate from Harvard.
Then, finally, democracy dawned in South Africa. In the early 1990s, Pillay was a member of the Women’s National Coalition, a broad-based alliance uniting women around gender equality and inclusion in the new South African Constitution.
In 1992, she co-founded Equality Now, an international women’s rights organisation. After the 1994 democratic elections, Pillay was invited to act as a judge in the High Court – the first black woman to do so.
From democratic SA to Rwandan genocide
But it was Pillay’s work on international criminal law and international human rights for which she achieved global recognition. She was asked to play a role in the International Criminal Tribunal for Rwanda (ICTR), and was elected by the UN General Assembly to serve as a judge in 1995 – the first woman to do so. She served in this capacity for eight years, until 2003. In the last four years, she was President of that court.
“People told me ‘you can take up the post and resign after a year’. Eight-and-half-years later … I missed out on the joy of celebrating our new democracy here,” recalls Pillay. “Why did I stay on so long? Because the witnesses who had suffered rape, killings and so on [in the Rwandan genocide] said to us judges, ‘we have waited for this day for justice to be done’”.
The ICTR had jurisdiction over the crimes of genocide, crimes against humanity, war crimes and aggression. Pillay played a critical role in developing the ICTR’s jurisprudence on freedom of speech and hate propaganda, as well as rape and genocide. The landmark trial of Jean-Paul Akaseyu established that rape and sexual assault during armed conflict could constitute genocide.
“If you get into a position of power and can make serious changes, let’s do that,” Pillay advised graduands. “And that’s how we got the world’s first judgment on genocide and sexual violence and rape constituting war crimes – genocide against humanity. It’s because we listened to the evidence of Rwandans who had really suffered.”
When Pillay’s term ended, she was snapped up for the newly formed International Criminal Court in The Hague. In February 2003, she was elected for a six-year term to its first panel of judges, where she served on the Appeals Chamber.
A South African in The Hague
When Pillay became a judge at the International Criminal Court in The Hague, she was disappointed that African women from other countries in Africa seemed not to notice the rampant racial discrimination and limited advancement opportunities – out of 18 law clerks, only one was a person of colour.
“There were eight women elected, four or five of us from Africa. And this is what our experience has taught us – to always look for discrimination and suffering on the part of people who have not had the opportunity,” she said.
Recognising her nose for discrimination, newspapers formed a consortium to profile Pillay extensively as the person best situated to represent what the court represents.
“Because of apartheid, my experience on the Rwanda tribunal, I’m a woman and I’m a black woman, they did these huge profiles very much recognising the role that South Africa had played in pushing for this international court,” said Pillay. “There’s a whole new world opening to students in law and commerce – a whole new world for you to gain justice for victims.”
Sniffing out discrimination: The 5th UN High Commissioner for Human Rights
In 2008 Pillay resigned from The Hague to take up the position of the 5th UN High Commissioner for Human Rights, appointed by UN Secretary-General, Ban Ki-moon. She served two 2-year terms, until 2012.
The UN High Commissioner for Human Rights post was established because civil society pushed for it at the Vienna Conference in 1993. President Mandela encouraged NGOs from SA – by then returned to the international community – and funded a number of NGOs, including lawyers, to attend.
“I was the only NGO person, working in a basement, and I never thought that one day I would hold this position of High Commissioner for Human Rights that people on the street wanted,” recalls Pillay.
“I planned for greater democratic space for civil society organisation, because country after country have passed laws stifling NGOs and stopping them from receiving funds.”
“I addressed many issues not addressed by the UN before, one being geographical representation of staff, the others are LGBTI rights were recognised for the first time,” she said.
When she became High Commissioner, ambassadors from developing countries told Pillay to transform the geographical representation in the office. Pillay recalls conversations with staff from western countries who felt it was their right to appoint their citizens to international institutions, because they paid more to the UN fund.
“I said to this assembly of member states and NGOs that I would not tolerate apartheid in my office. Black Africans for instance were never promoted. There were 20 field officers all over the world, not a single one of them was headed by an African, let alone an African woman. All that changed in my time. And why did I do so? Because of our experience in South Africa. We become aware. We can sniff out discrimination, particularly of the racial and gender kind, at any time.”
Pillay said that the United Nations is a highly politicized environment but she promised independence, impartiality, fairness, truth – all the values that are set out in our Constitution.
In conclusion, Pillay told graduands, “I’ve spent some time telling you about how I did my job truly to inspire you to think outside the box, do something that has not been done before, and you have so much opportunity now that you have access to internet and so on – I encourage you to find out about positions that are available internationally so that we can get more South Africans in. You’ve reached a milestone. I’m deeply proud of you.”