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McNally: How he struggled to save three Zanla fighters from the gallows




JUSTICE Nicholas McNally, who passed away on 23 January 2021 in Johannesburg, South Africa, left an indelible mark in the public life of Zimbabwe, which he served with sterling dedication and commitment.

He served his country in many roles — as a civil servant, a legal practitioner fighting for justice, a politician seeking a better and non-racial Rhodesia, and as an excellent judge who lived up to his judicial oath.

When McNally arrived in the then Southern Rhodesia as a child from the British Overseas Territory and headland on the Spanish south coast, he came into a society that placed in the path of the majority black people serious racial hurdles.

McNally was born on 22 December 1931 in Gibraltar.

His long career of public service started with a 10-year career as a diplomat during the Federation of Rhodesia and Nyasaland (present-day Zambia, Zimbabwe and Malawi).

Upon dissolution of the federation, he briefly prosecuted before he went to practise at the bar as an advocate.

He was in active legal practice from 1964 until his elevation to the bench in 1982 — two years after Zimbabwe’s Independence.

Despite the burden of a busy legal practice which included many cases of defending African nationalists and freedom fighters, McNally involved himself in the fight for betterment of the condition of black people and Rhodesian society in general. He gave a full life of service to Zimbabwe.

Soon after turning to legal practice, Ian Smith performed a 1965 coup upon the Crown and declared what was called the Unilateral Declaration of Independence from Britain (UDI). This event caused a major constitutional crisis in Rhodesia and across the British empire.

McNally was soon to be involved in the long, arduous legal fight arising from this. He was immersed in the monumental constitutional battle fought in the courts of Rhodesia and all the way to England. The ripple effects were felt beyond the legal battle. The case was considered the biggest legal case in the world since World War II.

An African nationalist, Daniel Nyamayaro Madzimbamuto, had been detained for several periods since 1958 for his political activities. Further detentions and restrictions continued after UDI.

His wife, Stella Madzimbamuto, sought legal assistance from Anthony Jaffey of the law firm Scanlen & Holderness. Jaffey, in turn, briefed McNally to challenge the continued detention of her husband.

McNally, led by the famous South African-born advocate Sydney Kentridge, fought in the High Court and Appellate Division of Rhodesia and, in substance, lost.

The case went all the way to the Privy Council. Before the case was heard, the Smith government announced that it would not recognise the outcome.

Madzimbamuto’s wife’s victory in the highest UK court was not recognised by the Smith government, a matter that must have pained him deeply.

Soon after the Madzimbamuto battles, McNally and Kentridge were again hired to fight the Smith regime in its courts.

This time they were trying to save three liberation fighters from becoming the first executed political prisoners in Rhodesia.

Three Zanu activists, James Dhlamini, Victor Mlambo and Duly Shadreck, had been tried and convicted of petrol bombing a car driven by Pieter Oberholzer, a white reservist who later on died from the burns.

The three were sentenced to death. Appeals against the conviction and death sentence in Rhodesia had failed. A request to the Rhodesian Government to commute the death penalty had failed.

On 26, 27 and 28 February 1968, McNally, led by Kentridge, fought a hard battle in court to try and stop the execution of the three.

The court was dead-set against them. On the next day, on Thursday 29 February 1968, judgment was delivered refusing to interdict the executions pending appeals to the Privy Council.

McNally and Kentridge were unrelenting. On the next day, on Friday 1 March 1968, McNally appeared in court with Kentridge with fresh arguments, and tried to stop the executions. They again failed.

Meanwhile, the British government, whose authority Smith did not recognise, granted pardons to the three convicts.

McNally spent the weekend preparing a fresh application. On Monday 4 March 1968, McNally appeared alone on this ocassion in the Appellate Division, and tried to stop the execution of three on the grounds that the Government of the United Kingdom had granted the convicts mercy and commuted the death sentences imposed to sentences of life imprisonment.

The Rhodesian appellate court refused to recognise the British pardon.

McNally and Kentridge had tried everything. There was not much else he and his colleague could do to save their clients from a government committed to executing them.

True to form, two days later, and on 6 March 1968, McNally’s clients were hanged by Smith’s government. There was a huge international outcry against the executions.

Facing inevitable death after the failure of the determined court challenges, one of the convicts, Dhlamini, wrote a letter to his parents and, in that letter, revealed his gratitude to his lawyers, saying:
“Our lawyers have tried all they could to have our lives spared. They appealed to the British Queen who authorised a reprieve, but it all failed. Now, it’s alright, father, because I know I die for my people. Many, like me, have sacrificed their lives throughout the world so that their people may live freely in their own countries. Your conscience and mine are clear, dear father, for I die not as a thief or a lover of riches. I die for the liberty of my country and people. My comrades and I will be remembered in the pages of history, not as criminals, but as champions of the cause of our people. So don’t let my death trouble you; because I chose this road myself and I die without any doubt as to the justice and worth of this noble cause.”

The death sentence became a weapon of choice for the Smith regime with the result that by 1972, a total of 225 people had been sentenced to death since UDI in 1965.

The Centre Party
In August 1968, a group of white Rhodesians unhappy with the political situation and direction that Smith’s government was going decided to form a new party which they named the Centre Party.

The Centre Party was to be a multi-racial political party in racist Rhodesia. At its first congress, McNally was elected one of the two-vice-presidents. As a liberal party, the Centre Party found itself in a difficult position of trying to appeal to blacks to swell its numbers and at the same time grow the number of white liberal membership.

In the 1970 election, Nick McNally stood on the Centre Party ticket against Jack Howman, Rhodesia’s then minister of Defence and Internal Affairs, for the Mount Pleasant seat in present-day Harare.

McNally lost in the election, and so did all his white colleagues wherever they contested for “white seats”. The African candidates of the party did well and won a resounding seven out of the eight “African seats” in parliament.

Despite not being in parliament as he had hoped, McNally and two of his party colleagues supported the African parliamentarians by researching parliamentary issues, drafting speeches and organising committee meetings.

They also did general administration and published the party newspaper, Centre Point. They believed in a Rhodesian future that was non-racial. From their efforts, by 1971 the party had reached its peak with 60 branches in African areas.

Decline was to begin in 1972 when the party decided to support the proposals of the Pearce Commission on Rhodesia’s self-rule.

The majority of its black membership deserted it and joined nationalist parties. Intimidation was also employed against African members who decided to remain.

In the 1974 parliamentary elections, the Centre Party fielded only five candidates, four of whom were black. Only one black candidate retained his seat. By 1977, the party was weak.

It decided to merge with the revived Rhodesia Party (not to be confused with Smith’s Rhodesian Front) and the National Pledge Assocation to form the National Unifying Force as the country’s main opposition party.

As a leader of the National Unifying Force, McNally spent a lot of time campaigning far and wide across the world for a peaceful settlement which involved the liberation movements that were waging the war of liberation.

He also campaigned for genuine free and fair elections which did not have special conditions favourable to the white population.

During the 1979 Lancaster House negotiations, his party unsuccessfully campaigned against the proposed 20 special reserved white seats in parliament.

As a result of the reservation, the 1980 Zimbabwe elections were held with blacks contesting only 80 of the 100 seats with 20 reserved for white voters.

McNally’s party voted not to stand in the 1980 elections because they were racially segregated. However, McNally decided to defy his own party decision and stood in the “white special seats” election as an independent candidate against the Rhodesian advocate and minister, JC Andersen contesting for the Mount Pleasant seat.

McNally was not daunted by his own pre-election prediction that he would not get more than 20% of the votes.

He got 20.6% with 698 people voting for him, while his opponent got 2 683.
His showing was considered the most impressive challenge against the Rhodesian Front on the white voters’ roll.

The aftermath
Soon after the electoral fever had died down, he continued his practice as an advocate.

In August 1980, he was briefed to represent Zanu PF’s second most powerful politician and cabinet minister, Edgar Tekere, who was accused of the murder of a white farm manager and attempted murder of five army soldiers. It remains one of Zimbabwe’s most sensational trials.

It was some twist of fate. In 1975, McNally and many others had opposed fiercely the passing of a law that gave government ministers, officials, security forces indemnity for any crime they committed provided they acted in the bona fide belief that they were suppressing terrorism. It was a law heavily criticised for giving a licence to kill.

One of the loudest critics was the Catholic Commission for Justice and Peace which McNally, a devout Catholic, actively supported. This law was deemed by the Smith government necessary in suppressing the liberation struggle.

However, the law remained in the statute book at independence. Based on this law, McNally devised a defence based on this indemnity and argued that it applied to the new government officials as much as it did to the Rhodesians.

At trial, McNally was led in the trial by a formidable English barrister named Louis Blom-Cooper QC. This novel argument resulted in Tekere’s acquittal.

The two assessors, one black and one mixed-race, overruled the white presiding judge. The acquittal of Tekere based on this law shocked much of the white community, while at the same time bringing great joy to many black people who supported Tekere.

Even its imprimatur, Smith bitterly complained about the verdict.

Soon thereafter, McNally accepted appointment to act as judge of the High Court. He was subsequently appointed as a permanent High Court judge.

His work in those early years of Independence involved diverse criminal, commercial and constitutional law work. He wrote numerous judgments reported in Zimbabwe and also in South Africa.

In 1984, he was elevated to the Supreme Court, which he served until his retirement in December 2002 upon reaching the mandatory retirement age of 70.

From his long service on the bench of the Zimbabwean courts, McNally has left a huge treasure of carefully reasoned, well-written and far reaching jurisprudence.

was always fair to counsel, polite to litigants and never delayed his judgments.

He would not shy away from expressing dissent if he disagreed with his colleagues. McNally was fearless in defence of principle even if he was in the minority.

Twice as a judge of the Supreme Court he co-signed a statement in which he and fellow judges rebuked the Mugabe government for undermining the rule of law. The response by Mugabe was vicious, but McNally was unmoved.

In November 2000, several hundreds of veterans of the Zimbabwe liberation struggle invaded the Supreme Court just as it was to commence the hearing of a matter concerning land.

They threatened the judges and assaulted the police orderly. The then minister of Justice, Patrick Chinamasa, told Chief Justice Anthony Gubbay that unless he resigned the government could not guarantee his safety.

The same threats were made to McNally and his other colleague Justice Ebrahim. As a result of the threats, Gubbay resigned in February 2001. Ebrahim soon followed. But McNally would not be intimidated.

He refused to resign and continued in office until he reached the mandatory retirement age in December 2001.

This difficult end to his judicial career in Zimbabwe must have pained him deeply.

It must have hurt deeply to hear the then minister of Justice claim that he was “exorcising the racist ghost of Ian Smith” by removing these judges. After all, McNally, unlike the minister concerned, had stood up to Smith and fought hard against his government for much of his political and legal career.

He had also defended liberation fighters and nationalists in courts across the country.

Soon after retirement, McNally was appointed to serve on the Court of Appeal of Botswana and he did so for many years. He still retained his sharp and keen judicial mind.

He gave his life to many causes including interest in the training of lawyers and teaching of the law.

His McNally Report resulted in a review of the LL.B degree offered by the University of Zimbabwe. The present degree owes its life to the work of his committee.

McNally offered his services to the Law School and the legal profession and often accepted invitations to deliver lectures.

His lectures were littered with pragmatic lessons on practical advocacy and what the judges expected of lawyers.

He gave his time to causes like the establishment of the Catholic University in Zimbabwe. Its existence owes a lot to the fundraising efforts he led.

He also served for many years on a Vatican-appointed committee that advised the Pope on matters of faith.

McNally is survived by his wife of 67 years, Sarah, six of his children, 19 grandchildren and four great grandchildren. He would have celebrated his 90th birthday in December this year.

His outstanding legacy of public service will live on.

Mafukidze is a Zimbabwean advocate based in South Africa. Mafukidze, who practiced law extensively in Zimbabwe, is currently a member of the Johannesburg Bar. He practises with Group One Sandown Chambers in Sandton, Johannesburg.

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