Pioneering Human Rights
By Sheila Avrin McLean
While that promise is first and foremost Mandela’s legacy, it is also a promise that the Ford Foundation supported extensively and continues to support today as institutions that the Foundation helped create work to embed in South Africa’s constitutional structure pioneering human rights for all South Africa’s citizens.
Early Work in South Africa
I first visited South Africa in November 1976 to evaluate a grant to the Washington, D.C.-based Lawyers Committee for Civil Rights Under Law-Southern Africa Project (Lawyers Committee) that assisted the legal defense of South Africans charged with political crimes. At that time, I was a lawyer in the Foundation’s Office of General Counsel. While my legal specialty was the then-new tax law regulating foundations, my assignments had expanded to international trouble shooting, such as advising on complicated international institutional arrangements like the Consultative Group on International Agricultural Research, and instituting protection for women, especially women in developing countries, who were the “subjects” of research in new methods of birth control funded by the Foundation.
In those days, international official aid was mostly limited to working through host developing country governments. Similarly, international private philanthropies when working in developing countries often partnered with host governments. The terms “civil society” and “human rights” were not widely used; donors rarely funded local, nongovernmental organizations, especially ones that challenged political practices of host governments.
At the time, the Foundation had a small grants program inside South Africa that sought mainly to encourage South Africans to work for a multiracial society as well as a limited number of international exchange programs to expose South Africans to alternatives to the oppressive apartheid regime. Importantly, there was also a Foundation grant to the Lawyers Committee that helped South Africans challenge some of the South African government’s heinous apartheid laws.
In thinking about the Ford Foundation’s historical role, it’s important to recall that, “Strikingly, the foundation’s concern about the brutal apartheid structure of South Africa began well before the international community and its institutions became seized by it,” wrote William Korey in his 2007 book, Taking on the World’s Repressive Regimes: The Ford Foundation’s International Human Rights Policies and Practices.
This was the context in which, in 1976, Robert Edwards, who then headed the Middle East and Africa Program and who had brought to the Foundation broad-based experience in Southern Africa, asked me to evaluate the most “confrontational” of the Foundation’s South Africa grants, the above-described grant to the Lawyers Committee. He suggested that, to gain a better understanding of the region before going in to South Africa, I accompany him to review grant programs in East and Southern Africa and attend an African-American Institute Conference in Lesotho. He also asked me to think broadly about the policy prescriptions then driving the Foundation’s South Africa work: helping South Africans build a multiracial society.
The peaceful demonstrations were stopped by gunfire from the police and resulted in many deaths, officially reported at 176 but widely estimated at 700.
The killing of children in peaceful demonstrations brought increased international opprobrium to the South African system of apartheid and also catalyzed the opposition within the country. My visit, by beginning in neighboring Botswana and Lesotho, enabled meetings with young South African child refugees who were leading a revolution by challenging state authority on how they were being taught. Their courage and well-considered actions, combined with many discussions inside South Africa with more mature opponents of the apartheid regime, led me to state in a December 27, 1976, Trip Report Memorandum to Edwards:
“Children leading a revolution implies to me that the polity of South Africa is fundamentally sick. The fact that these children know that they may die or be put in prison means to me that they have lost their fear and will continue their struggle, no matter what. …I believe any one [of several political scenarios] will lead to Black African majority rule in South Africa with this generation of children in command…If we can assist in any way avoid …complete black-white polarization, especially in the minds of the Blacks who will one day (whether it is ten years or less) rule in South Africa, I think we should try.”
I then outlined in my report a series of program possibilities focused on human rights, rule of law and education that were based on ideas of South African activist thought-leaders I met during my 1976 visit. That visit, and many subsequent visits to the country, helped me convince Edwards first and, subsequently, McGeorge Bundy, then president of the Foundation, and Robert McNamara, then president of the World Bank and chair of the Foundation’s Board of Trustees’ International Committee, to shift the Foundation’s focus from assisting liberal, mainly white, South Africans build toward a multiracial society to approaches more in line with the underpinnings of Black opposition politics within the country: human rights and education programs, many of which were led by Black leadership inside the country. The Foundation’s policy focus became helping South Africans prepare for a post-apartheid, majority-ruled South Africa, where rule of law was honored and education was a right for all.
The style of my 1976 report was unusual for the Foundation—it emphasized my emotional response to children leading a revolution—and I remember being uneasy about Bundy’s possible reaction to it. Bundy’s normal (“public”) working style in officers’ meetings was to debate issues with staff (me included) and, with his keen analytic mind and superb debating skills, he would always win the debate and, sometimes afterward, in private, ask what was I “really” trying to say. Not this time. In fact, his response to my 1976 report was: “How much money do you need to start that program?”
The more difficult conversation was with McNamara, who questioned my emphasis on the importance of recognizing and supporting Black opposition within the country, especially the role of children in leading this opposition, and my criticism of the response of the South African government.
One colloquy in particular seemed to help sway him to support the changes in approach I was recommending. He reminded me that as Secretary of Defense under President John F. Kennedy he had ordered troops to confront protesters against United States involvement in Viet Nam as they marched on the Pentagon, and wondered how the South African situation differed markedly from that incident. I responded: “But Mr. McNamara, were your troops’ guns loaded and would you have ordered them to shoot at unarmed civilian protesters? The difference is that the South African authorities ordered the police to shoot and kill unarmed children.”
Early in 1977, the Board and Bundy approved my working with program staff to set a new direction to the Foundation’s work in South Africa that expanded our role in human rights, added to education initiatives and explored possibilities with labor unions and the press.
For the next several years Carmichael and I worked inside South Africa to:
To a much lesser extent, we also worked in South Africa to extend the Foundation’s dialogue with labor unions and community groups, devise additional means of assisting political prisoners, and initiate discussions with opposition Afrikaaners.
As it turned out, much of this new program thrust set the agenda for the Foundation’s South African work for the next 15 years, until the apartheid regime was replaced by the Government led by Nelson Mandela, starting a new course for South Africa.
Rule of Law Grants
After my evaluation was accepted, the Foundation renewed and increased its support for the Lawyers Committee. This project was run from a D.C.-based institute founded in the 1960s at the request of President Kennedy to enlist the private bar’s leadership and resources in combating racial discrimination in the United States and the resulting inequality of opportunity. In the late 1960s, the Lawyers Committee began providing assistance for human and civil rights problems in South Africa, litigating on behalf of the anti-apartheid movement and the Congressional Black Caucus within the United States. The Southern Africa Project, supported by the Ford Foundation and many other philanthropies and the U.S. private bar, continued for more than 30 years, through the end of apartheid. Their South African work was guided first by Millard Arnold and, subsequently, by Gay MacDougall, and they became an outstanding and internationally-recognized agent for challenging apartheid’s laws and helping South Africans’ work that maintained respect for the rule of law.
Some of the South African lawyers who worked to defend political activists charged under the increasingly draconian internal security laws became aware of new types of legal institutions that were being created in the U.S., Australia and Britain: legal aid for the poor, public interest law firms that defended the rights of the public through litigation, and civil rights law groups like the NAACP that advanced major rights through litigation.
South African legal scholars like John Dugard, then dean of the law faculty of the University of Witwatersrand, and Tony Mathews, then dean of the law faculty of the University of Natal in Durban, were two pivotal legal thinkers about rule of law and legal structures that would enable legal aid to underrepresented communities. Dugard was a founder of the Foundation-funded Centre for Applied Legal Studies at the University of Witwatersrand, which has evolved to implement a remarkable vision, expressed as:
Just as important were superb legal practitioners who became convinced they could initiate public interest law firms in South Africa. These practitioners included Arthur Chaskelson, who was much later appointed by President Mandela as the first Chief Justice of the South African Constitutional Court; Sydney Kentridge, then perhaps South Africa’s leading private barrister who distinguished himself by representing many political prisoners, including Nelson Mandela and the family of black consciousness leader Steve Biko in the now famous inquest into his death by police brutality; Ismail Mahomed, then a leading South African senior barrister of Indian descent, who in 1997 became the first nonwhite Chief Justice of South Africa; Felicia Kentridge, then at the University of Witwatersrand School of Law; and their younger colleague, Geoffrey Budlender, an attorney who has since distinguished himself as a leading spokesman for human rights.
All of them worked diligently to create a South African institution that could carry the banner of rule of law in the public interest: the Legal Resources Centre (LRC). The LRC thrives today under its Mission Statement, which says, in part, that it functions as a “public interest law clinic which uses law as an instrument of justice and provide(s) legal services for the vulnerable and marginalised…build(s) respect for the rule of law and constitutional democracy… (and) contribute(s) to the development of a human rights jurisprudence and to the social and economic transformation of society.” (The full statement is available on the center’s website, lrc.org.za)
In 1978, I recommended experimental grants to promote international collaboration in structuring these new forms of legal aid and public interest law institutions inside South Africa. My rationale was simple: the South African web of oppressive apartheid laws was based on a Government that adhered to rule of law principles. Where there was a lacuna in the law or its application, well-motivated litigators could challenge how bad law was applied and, sometimes, win. Often these victories were for Blacks, enabling grounding in rule of law principles for the future, majority-ruled South Africa.
A reason we could do this was that by the mid-1970s, the Foundation was steeped in helping U.S. lawyers institutionalize public interest law in the United States. The concept was that new public interest law firms would work to promote and protect the public interest by using the legal system to fight for human rights or protect the environment or advocate on behalf of consumers. These U.S. public interest law organizations became a beacon for South African lawyers who handled political defense work when I met them in the late 1970s.
And so began a Foundation-funded process of deep exposure of South African lawyers to the U.S. experience: sending to South Africa experts like Jack Greenberg, Director-Counsel of the NAACP Legal Defense Fund; supporting South African lawyers’ visits to U.S. advocacy institutions; and building alliances with U.S. lawyers, like Lloyd Cutler, who later was White House Counsel to both Presidents Jimmy Carter and Bill Clinton.
In addition, lawyers at two other foundations—Rockefeller Brothers Fund’s Bill Moody and Carnegie’s David Hood—in about 1977 began focusing on rule of law issues in South Africa. Cooperating and coordinating information with them became an invaluable means of satisfying internal foundation questioning that each of us faced and increasing the amount of funding available for grants overall.
One of the resulting organizations—the LRC already described—focused on many key legal issues during apartheid and has metamorphosed itself into a world-class public interest law firm that is an advocate for the underrepresented on a full range of social, political and economic rights.
Moreover, as the organization that became the LRC started taking clearer shape, a U.S. support group, then called the Southern Africa Legal Services and Legal Education Project was founded in 1979 by internationally-minded, progressive leaders of the U.S. bar like Lloyd Cutler and Erwin Griswold, dean of Harvard Law School. That organization still exists as the South African Legal Services Foundation (SALS), a 501(c)(3) “friends of the LRC.” Carmichael and I are members of the board of this organization, which also includes as its new chair Teresa Clarke, founder of Africa.com, and as its former chairs the Hon. Margaret Marshall, retired Chief Justice of the Massachusetts Supreme Judicial Court, and Prof. Harvey Dale of New York University School of Law and Founding President and a director of The Atlantic Philanthropies. The relationship of support by SALS for its South African senior partner is an exemplary illustration of how to maintain continuity of communications and support as times change.
Grant Support to Black-led Institutions
One of my early recommendations was to initiate grant support to Black-led institutions. I believe I am correct in recalling that the first of these was to the South African Council of Churches (SACC) where then Bishop Tutu had recently been appointed General Secretary. My 1976 Report identified the SACC as the only indigenous organization assisting the families of political detainees. That opening grant led to additional grant support for many community-oriented, anti-apartheid groups. One example was SACHED Trust, concerned with both access to education and appropriate curriculum to counter Bantu education, led by John Samuel, a creative educator who leveraged distance education. And other innovative, anti-apartheid, Black-led community groups were added as grantees over the years after I left the Ford Foundation.
We knew that many people of talent had been relegated to these Homeland universities and that this talent pool should not be ignored. Korey writes in his book about my emphasis on education of young blacks through a political minefield of training Black faculty at the Homeland universities. “For McLean,” he writes, “the key to black educational upgrading was the black faculty. In her judgment, the route to be pursued by the foundation was in offering the faculty of the ‘Homeland’ universities Master’s Degree training ‘outside of South Africa.’ She was emphatic on the urgent need to provide solid educational training for black youngsters ‘in preparation for majority rule.’ It was impressive that McLean was looking down a very long road and anticipating an eventual breakthrough….”
The building of that long road was started by David Smock. After leaving the Foundation in the early 1980s, David served at the neighboring Institute of International Education (IIE) as the first director of the South African Education Program (SAEP), the scholarship program he had designed at the Foundation to bring black South African students to U.S. universities. When David Smock left IIE, I was asked to take over the program that he had begun. Together with many partners, we built the largest educational and training program in the world outside South Africa for Black South Africans to prepare for a post-apartheid South Africa.
The success of this endeavor depended significantly on IIE’s South African counterpart and partner organization, the Education Opportunities Council (EOC), chaired by Archbishop Tutu and directed by Buti Tlhagale, then a Roman Catholic priest and, since 2003, the Roman Catholic Archbishop of Johannesburg. EOC was responsible for the selection of SAEP students from throughout the Black political and geographic spectrum of South Africa. Also playing major roles were a U.S.-based advisory committee of academics, corporate leaders and foundations chaired first by Derek Bok, then president of Harvard University, and subsequently by Vartan Gregorian, who became president of the Carnegie Corporation.
The Labor Movement
“A unique aspect of the McLean report,” Korey writes, “was its unprecedented concentration on black labor. That subject would come to be seen as a strategic core element in the struggle against the apartheid system. McLean…appeared to be among the first to recognize its potential significance…. After consulting with key economic professors at the University of Cape Town [led by Prof. Francis Wilson], McLean advanced the idea for the foundation ‘to support’ a ‘potentially very useful grant’ that would study and analyze ‘the web of labor laws and pass-laws’ dealing ‘with the migratory nature of the labor force.’”
In addition, I suggested working with then powerful U.S. unions that had recently posted bond in the United States for the NAACP. This suggestion was not then taken up. As Korey points out: “Later, American unions would become vigorous allies in the battle against apartheid.”
A few years ago, my husband and I returned to South Africa. As it had been some years since I had last worked in that country, I was warned in advance of the trip by a friend who is a leading U.S. academic expert on South Africa: “Don’t think that they will remember you, Sheila.” This view, that memories are short and appreciation evanescent, was challenged by much of what happened on this visit, 30-plus years after my first trip to South Africa.
Several special treats included a surprise dinner party hosted for us by Archbishop Buti Tlhagale with former students of the scholarship program we had jointly developed, now leaders of media, captains of industry and political leaders; a full day examining, with John Samuel, the newly-appointed headmaster, a small, private school for disadvantaged South African girls, with an innovative curriculum that was fully funded by Oprah Winfrey’s philanthropy; extensive meetings with the Legal Resource Centre’s lawyers, including Arthur Chaskelson, who had recently retired as head of the South African Constitutional Court and was volunteering with the LRC a day a week; and visits to several community advancement projects supported by the LRC.
The work I did for the Ford Foundation in South Africa in the late 1970s was part of a sustained commitment by the Foundation to work in the country and the region. The emphasis I encouraged on human rights and education became an integral part of that sustained commitment and was later enhanced by other private philanthropies, especially Atlantic Philanthropies in the 1990s and ELMA Philanthropies in the 2000s, and public donors, notably USAID and European government donors.
Foundations frequently initiate programs and then later change areas of interest and the earlier programs lose traction. In contrast, the long-term nature of the work of the Ford Foundation in South Africa is testimony to the value of long-term sustained commitment and support, of which the Legal Resources Centre, an indigenous institution that is now having a global impact, is a leading example.
The Ford Foundation in South Africa
Pioneering Human Rights by Sheila Avrin McLean
Visions of Johanna: Inside the museums, apartheid goes on trial by Gerry Salole
Letter: The Ford Foundation in South Africa by Willard Hertz