On September 9, 2020 George Bizos, that unrelenting crusader of justice succumbed to death at a ripe age of 92. His passing hit closer home.
It left my brother, Mike (his former client) heart-broken. I was similarly deeply saddened. He impacted on our lives in different ways.
Mike wrote me soon after he learnt of his passing, in his typical effortless prose: “My intimates are falling in quick succession. Beginning to feel like I am in the queue”.
Not long time ago he lost another close friend – Andrew Mlangeni, an anti-apartheid campaigner, who, along with my brother and Nelson Mandela were imprisoned for furthering the aims of the African National Congress (ANC) and were sentenced to serve in Robben Island.
Bizos was a legend.
He was an unmatched champion of human rights – unquestionably committed to the cause of humanity especially the oppressed and down trodden. The record speaks for itself: He played a pivotal role in all major human rights trials, such as the Treason and Rivonia Trials, the Nusa Five Trial, the Delmas Treason Trial, the inquests into the deaths of activists Ahmed Timol, Steve Biko and the Marikana massacre.
He also represented a host of ANC leaders such as Winnie Mandela, Albertina Sisulu and Barbara Hogan in numerous political trials in the 1960s.
The story is told that at a tender age of 13, Bizos, in the company of his father, set off on a journey that ended in South Africa after it was revealed that his family might face reprisals from marauding Nazi forces after sheltering allied soldiers from New Zealand.
Years later as a lawyer and judge he impacted directly on my life and that of my brother, as I shall briefly discuss hereunder.
Bizos was particularly famous the world over for having been part of the legal team that represented Nelson Mandela, Walter Sisulu and other stalwarts of the South Africa liberation struggle during the Rivonia Trial. It was during the trial that his formidable cross examination skills came to the fore.
He had this rare skill of asking a witness deceptively simple questions that at the end of the day would prove fatal for the opposing side.
In many respects his style, courtesy and focus reminded me of my soft –spoken friend, Dick Bayford, whose cross-examination skills are legendary. On a few occasions we locked horns I emerged blood nosed! He is in fact our own George Bizos!
I have read a few of his works, including his monumental book: Odyssey to Freedom. It is packed with amazing wisdom.
The book also reveals that Bizos was an amazing human being. In the book he writes how he used to bring home-grown salad, cheese and other goodies to his clients – the Rivonia trialists!
Bizos rescued my brother from the gallows. He was his lawyer back in the 1960s, in the case where he was charged with Issy Heymann for being a member of banned organisations: ANC and the South African Communist Party (SACP) and recruiting the youth for military training outside South Africa.
His friend Heymann was only found guilty of one count: being a member of the SACP. My brother was found guilty of the balance of the counts and was sentenced to 15 years imprisonment in Robben Island.
He informs me that it was difficult to find lawyers to represent them as most lawyers were scared to represent, ‘terrorists’. They were lucky that the underground leadership of the movement managed to secure Bizos to represent them.
He tells me that Bizos represented them with skill and conviction, despite the fact that they were eventually found guilty as charged, a verdict that reflected badly on the apartheid Court than Bizos, the lawyer. He was very impressed that Bizos was not afraid of whatever evil the fascists could unleash on him.
Many years later, as a Justice of our highly respected Court of Appeal (CoA), he contributed to the decision of the CoA in the famous case of Unity Dow v The Attorney General. During argument in the matter, he had difficulty, as he later told me, appreciating the argument, that the founders of our Constitution deliberately intended to discriminate against women; and that public opinion was opposed to equality between men and women because Botswana is patriarchal society.
The latter part of the argument was advanced before me, decades later, surprisingly, in the Mmusi case, with no success.
On a personal note, however, the case that stands out is the case of the Student Representative Council versus The University of Botswana (UB).
It is this case that saved me and many of my colleagues from guaranteed poverty and suffering, consistent with the law of uneven development that governs the global economic system.
Bizos literally made me who I am today, by using law as a tool for justice and in order to promote the right to education. As I always say law in wrong hands can be an unmitigated disaster and in good hands it can be a liberating tool - especially if it is understood that the ultimate objective of law is the welfare of society. At the end of the day justice is the ultimate aim of law.
In 1989 following a prolonged boycott of classes at the UB, the University was closed, to enable management to sift ringleaders and ensure they do not return when the University re-opened. I was looking forward to graduating that same year.
Unfortunately, Bayford and I were targeted for expulsion because we were considered the leaders of the boycott and liable to be sifted and excluded.
We got a whisper of this from the then member of the University Council, before the axe could fall, who is now a leading banker of unparalleled distinction and brilliance, in our country.
He later told me that the injustice and irrationality of the decision was such that he could not keep the plan away from us. It was a scary prospect. My sister, Mma-Ish
She was so traumatised that she even called the then Vice Chancellor, Professor Thomas Tlou, our cousin, to find out whether it is true I may not return when the University re-opened.
I suspect Thomas, in his diplomatic way, told her: it is what it is!
Terrified, Bayford and I managed to convince the Student Representative Council (SRC), then in the clutches of opponents, to challenge the closure in Court. We petitioned the High Court and lost. We appealed.
The matter landed on the lap of Bizos who wrote the judgement for the court. In a landmark judgement, that is simply etched in my mind as Civil Appeal No. 1 of 1989, the court ruled that the closure of the University was illegal and that the University Council cannot close a University for purposes of sifting ring leaders with a view to excluding them as that ran counter to the mandate of the University – being to promote higher education.
Bizos JA (as he then was) added that education was too important a right to be left to the bureaucrats alone. I have always thought this line was wrong in the context of the Botswana Constitution, but it did not matter because, as the lawyers would say, it was obiter, meaning that it was not the real basis for the judgement.
Apart from that I loved the polemic and ring of the line. Overall his superior reasoning shone through the entire judgement. His clarity of reasoning could only be matched by his clarity of expression. Had it not been for his judgement it is probable that Bayford and I would be languishing in the streets unemployed and without any degree to do anything useful for ourselves and humanity.
Civil Appeal No. 1 of 1989 was later to shape my approach to cases involving those authorities who unduly sought to disrupt future livelihoods of students by disengaging them from the school system.
My good friend and revered sister Pepsi Thuto, an undisputed first class lawyer, can tell the story much better than me as she was, at one point, at the receiving end notwithstanding her well prepared Court papers and eloquence! The elephant in the room was that something more fundamental was at stake! Joao Salbany, another top class lawyer, and consummate friend, would later suffer the same fate!
I digressed. Back to Bizos. Many years later our paths would cross, especially at conferences organised by Section 27 in South Africa and the International Commission of Jurists.
On many occasions we shared the podium: the student and the teacher, as speakers. In one such occasion I walked towards him and teasingly said: “My Lord may I approach the bench”.
He looked puzzled. Enjoying the awkward moment I persisted: “Afternoon Judge”. He was not a Judge then, but in my mind he was a Judge. Once Judge, always a Judge. He chuckled and responded “Key, call me George”.
He was humble to a fault. Bizos was one of those rare combinations - a confluence of humility, humanity and brilliance. His modesty was disarming – a rare quality for members of the legal profession known to throw their weight around – needlessly so! Bizos was always polite and never extraneous.
I last met him in 2015 at a meeting organised by the International Commission of Jurists (ICJ) in Johannesburg to celebrate the release from prison of my dear friend, a Swaziland (now eSwatini) human rights campaigner, Thulani Maseko.
Arnold Tsunga, that indefatigable defender of human rights had made it possible for the meeting to take place, as he always does, so that proper lessons could be drawn.
Maseko was a victim of a judicial officer who was drunk on power and found himself languishing in prison for no reason. The Swazi Constitution and Judges failed him in different ways. A chapter for another day!
At this meeting Bizos took me aside, and his voice almost failing, but with deep concern showing all over his face, asked me: “what is the state of jurisprudence now in Botswana? Is there still reluctance to use the Constitution by the Judges?’’ He was referring to what I once called, in an unguarded moment, in one of my judgments, constitutional phobia.
In the minds of many traditional Courts whenever there is a dispute before court such must not be resolved by invoking the Constitution if there are other grounds that can be utilised.
It is a problematic reasoning that pays lip service to the notion that every law is shaped by the Constitution that is the Supreme law. In the US Justices like Ruth Bader Ginsburg locked horns with the likes of Antonin Gregory Scalia on the matter.
Fare thee well champion of champions. You were a fine human being. Respected and loved by many. Thank you for the impact you had in our lives.
It is truly amazing that although he was born so far away in Greece he could impact so positively on the lives of sons of peasant parents from Mosalakwane, a sparsely inhabited and denuded oasis of peace, in the outskirts of Bobonong, and hardly recognisable by GPS.
You were a blessing of our lives. Your commitment to the rule of law is unsurpassed by anyone. You were a living proof that integrity and deep moral compass are not opposites but complementary. We are poorer without you in our midst! Fare thee well George! Robala ka kagiso motho wa batho!
*Justice Professor Oagile Key Dingake is Justice of the Supreme and National Courts of Papua New Guinea and Court of Appeal of Seychelles