Thought Crimes and Other Themes in Commonwealth Literature

My title—“Thought Crimes and Other Themes in Commonwealth Literature”—has an ominous sound, as if (to echo George Orwell again) our only hope in the era of climate change is to keep the aspidistra flying for a bit longer. Let me put such fears to rest immediately by declaring that I have a more constructive end in view. I will argue that some recent works of fiction by Commonwealth writers contain insights that not only illuminate our understanding of human rights and responsibilities but also enhance our capacity to speak of such matters.

I hasten to add that I am holding forth not as a literary critic but as a writer and practising lawyer. This will explain my wish to speak in general terms, without risking entanglement in “deconstruction” or any other postmodern infestations. The contemporary critic complains about ambiguity, but rather than slicing through the verbal undergrowth with crisp, incisive sentences, the complainant seeds the prickle patch with “tropes” and “signifiers” and other forms of “discourse” until ambiguities are legion. Constraints of time prevent me from saying more about this kind of ambush. For the same reason, I will refer to a few books only.

The Commonwealth is an association of fifty-three independent states working together for their citizens in the interests of development, democracy and peace. The Harare Declaration of 1991 asserts that the special strength of the Commonwealth is to be found in the diversity of its membership and a shared inheritance of language and the rule of law. Freedom of speech including the right to hold opinions without interference is thought to be essential for the maintenance of strong and efficient governments throughout the Common-wealth, subject to respecting the reputations of others and laws for the protection of national security, public health or morals.

These values have been woven into the fabric of the common law over many centuries and form part of the Westminster system from which governmental habits in the Commonwealth are principally derived. Their continuance depends upon an underlying respect for the rule of law, and that in turn depends not only upon the words used in a statute but also upon an awareness of the way things work in practice. “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties,” declared John Milton in a time of upheaval. This appeal to fundamental rights by a famous poet draws me back to literature and my present purpose.

Literary works hold a mirror up to society. From the plays of Shakespeare to the novels of Charles Dickens, literary works have had a way of illuminating the mysteries of the legal system and the values that underlie it. This brings me to a matter that bears upon my theme; that is, the question of whether the thoughts of a suspect or an accused person can be used to establish guilt.

The rules of evidence in most Commonwealth countries assume that the intention with which a criminal act was done can be proved as a matter of fact. A man’s intention can be inferred from what he said or did at the time the act was done. Moreover, if an accused person should seek to cover up his actions by telling lies after the deed, these lies can be used against him.

The author of a leading text on evidence once contended that the struggle of a victim for his life may leave upon the perpetrator the indelible traces of blood, or wounds or rent clothing, which point back to the deed as done by him. But a deed may also leave traces upon the doer through a psychological process. Thus, in certain circumstances a lie can constitute an admission against interest by an accused person if the court is satisfied that the only explanation for the lie is that he knew the truth would implicate him in the offence.

This rule is fraught with the possibility of error. An accused person may lie for many reasons: to shore up a true defence, to protect someone else, to conceal some other disgraceful conduct which is unrelated to the offence charged, or simply out of panic or confusion. The jury must therefore be warned against a natural tendency to assume that if an accused is lying it must be because he is guilty. If the jury thinks that there is, or might be, some innocent explanation for the lies, then it should take no notice of them.

The application of these rules, which are difficult to grasp in the abstract, can be graphically illustrated by a trial scene in Alan Paton’s well-known novel Cry, the Beloved Country, a seminal work foreshadowing the injustices of the apartheid regime in South Africa.

A father looking for a missing son in the slums of Johannesburg learns that his son is to stand trial as one of three housebreakers involved in the death by shooting of an enlightened social reformer named Jarvis. The defendants admit that they were on the premises with a loaded firearm, and assaulted the deceased’s servant with an iron bar, but deny liability for murder on the grounds that the fatal shot was fired in a moment of panic, not with an intent to kill.

In the course of his summing up, the judge notes that during the police investigation the woman Baby Mkize misled the police about her role in the affair. With an eye to the rules that I have been discussing, the judge says this:

“The woman Baby Mkize is a most unsatisfactory witness and while the prosecution, and the Counsel for the defence of the first accused, demonstrated this most clearly, neither was able to produce that conclusive proof that the murder had been discussed. The woman at first lied to the Police, telling them that she had not seen the first accused for a year. She was a confused, contradictory, and frightened witness, but was this fear and its resulting confusion caused by mere presence in a Court, or by knowledge of other crimes to which she had been a party, or by the guilty knowledge that the murder was in fact discussed? That does not seem to us to have been clearly established.”

In the end, as a consequence of the cautionary approach required by the rules concerning lies, two of the accused are given the benefit of the doubt and are acquitted. Certain admissions made by the first accused (the missing son) mean that the prosecution case against him is stronger, with the result that he is convicted, and eventually hanged. Paton’s novel is haunted throughout by a poignant irony: the deceased has been a friend and supporter of the black fringe dwellers with whom his killer has been associating.

This story can be regarded as a graphic illustration of the workings of the legal system. It shows how the right to a fair trial can be affected by the subtleties of various evidentiary rules and by the sense of fairness of those involved in the investigative and judicial processes. On the other hand, inherent in the story is a darker prospect. If rules of evidence in the common-law world allow for conclusions to be drawn about the vagaries of a person’s mind, it might not take much in an era of rapidly changing attitudes to weight these rules in favour of conviction.

Truth telling is an issue that doesn’t arise only at trial. Prevarication or guilty conduct may be of use during the pre-trial or investigative phase, for there are no restrictions on the leads or clues that the police may act on in deciding what to look for and where to search. A suspect who has been caught out in some incidental falsehood, perhaps as to how much he drank on the night in question, or whom he was with, can always have this used against him in an interview. Whenever the suspect asserts that he is being truthful about the principal issue, it will be open to the interrogator to remind the suspect that he lied a moment ago. The undermining of a suspect’s confidence in this way may ultimately lead to a full confession.

Cry, the Beloved Country was written in the 1940s. We now know that, as the practices of the apartheid regime worsened, the prospects of being dealt with fairly, especially at the investigation phase of many political and quasi-political crimes, steadily diminished, although the outward form of the trial process remained. This is evident in the plays of Athol Fugard and in the novels of Nadine Gordimer and Andre Brink.

Well-told stories not only illustrate the workings of the legal system, they can add a graphic sense of reality to the abstractions known as “human rights”. It doesn’t take much imagination to realise that the possession of a right will be meaningless if the description of it in a legal tome isn’t matched by an individual’s capacity to enforce the right, or by the realities of daily life. By creating works of fiction based on what is happening around them, by telling inspired lies if you like, writers of fiction have a way of revealing truths that might otherwise stay hidden. It is a lesson rooted in ancient Greek theatre: “Give a man a mask and he’ll tell the truth.”

George Orwell was alive to these concerns in the aftermath of the Second World War. It was then that he wrote his famous novel Nineteen Eighty-Four, a dystopian satire in which corruption of language—called Newspeak—becomes a means of controlling opinions and preserving the authority of the rulers. “Who controls the past, controls the future,” runs the Party slogan. “Who controls the present, controls the past.” Any rebellious or unorthodox opinion is characterised as a “thought crime”.

A Party functionary in the book reminds the principal character, Winston Smith, that the whole aim of Newspeak is to narrow the range of thought. “In the end,” he says, “we shall make thought crime literally impossible, because there will be no words in which to express it.” This prompts Winston Smith to write in his forbidden diary: “Thought crime does not entail death: thought crime is death.”

Orwell’s novel is well known, which makes it unnecessary for me to refer to the work in detail. When the clocks strike thirteen in the opening moments of the story, we are quickly made aware that this is a place in which power prevails over reason; a world in which Big Brother is always watching via the two-way television screen. In such a world, where the Ministry of Truth is dedicated to falsehood, and the Ministry of Love is a place of torture, a constitution proclaiming human rights will be worthless.

It can be argued, of course, that with the collapse of the Soviet regime, Orwell’s satire has lost much of its point, but this is seldom said. Most readers seem to appreciate that, like the eerie parables of his precursor, Franz Kafka, Orwell’s tale endures. It continues to evoke a shiver of apprehension. Big Brother’s features resemble those of Stalin but they might also be said to recall a famous recruiting poster of the First World War, depicting a heavily moustached military man (Lord Kitchener) pointing a finger at the populace, with the caption: “Your Country Needs You”. This, in a small way, illustrates some of the themes to be found in Nineteen Eighty-Four—the power of surveillance, the corruption of language, the manipulation of public opinion, the subversion of social realities. As in modern political campaigning, no slogan is too obvious if it accommodates the public’s secret wish to believe in it.

We can see much of this at work in J.M. Coetzee’s novel Waiting for the Barbarians, which was written prior to the dismantling of the apartheid regime in South Africa. An ageing magistrate, serving out his time at a peaceful frontier outpost on the edge of an unnamed empire, is visited by Colonel Joll of the Third Bureau. The rumour in the capital is that the barbarian tribes of the north and west may at last be uniting. The empire has to take precautionary measures, for there will almost certainly be a war.

The magistrate has not seen any signs of unrest. Indeed, the so-called barbarians are scarcely visible apart from a few traders selling trinkets outside the walls of the fort and fishermen who bring their catch to the daily market. Nonetheless, to appease his visitor, the magistrate takes Colonel Joll to an elderly prisoner who is being held for cattle stealing. “This gentleman is visiting us from the capital,” the magistrate explains. “He visits all the forts along the frontier. His work is to find out the truth.”

When the magistrate learns that Colonel Joll and his men have beaten the old prisoner to a pulp, the magistrate protests. This leads to the magistrate himself being arrested and beaten to a pulp. In the meantime, the empire’s expeditionary forces have ventured beyond the frontier to confront the barbarians, but to no avail. The barbarians can’t be found, although they are certainly thought to be responsible when the empire’s expeditionary forces limp home, half-crazed by heat and thirst.

The magistrate is reinstated eventually as a servant of the empire, but he feels “like a man who lost his way long ago but presses on along a road that may lead nowhere”. By the end of the book the reader is left in no doubt that the barbarians are to be found not beyond the frontier, but in the capital.

This brings me to The Native Commissioner by Shaun Johnson, which was entered for the Commonwealth Writers Prize 2007 and won the regional award for Africa in the Best Book category. This book touches upon Orwellian themes, but in a realistic manner. The reader is gradually drawn into the corrupting world of the apartheid regime that steadily expanded after Cry, the Beloved Country was written.

The Native Commissioner at the heart of Shaun Johnson’s story is a kind and conscientious man. George Jameson joins the South African Department of Native Affairs during the era when his linguistic skills and familiarity with indigenous customs provided him with opportunities to fulfil his dream of balanced race relations. Then, Smuts is defeated in the first national election after the war and the National Party is swept into office.

The mood in the bureaucracy changes. Jameson is now an officer employed by the Department of Bantu Administration and Development. He has never been a political person but he soon perceives that even his comparatively mild views are no longer welcome. His skill at mastering tribal languages in far places is not appreciated. The Bantu is seen as an “unperson”. Jameson and his family are shunted from one outpost to another, but he is now too old to find other employment.

Jameson’s attempts to ameliorate the injustices of the system lead him eventually to a state of crippling depression, then to suicide. The book breaks new ground in showing how apartheid injured even those working for it by the gradual erosion of their humanity.

At one stage during the 1950s, while working under the new regime, Jameson presides over a trial in which a group of Xhosa leaders have been charged with what appears to be an unprovoked attack upon a neighbouring group. Having mastered Xhosa as well as the Zulu language, Jameson senses that somewhere beneath the welter of brutal and apparently senseless acts there is an explanation which the formal rules of court procedure have failed to uncover. This turns out to be the presence of certain fighting sticks held by the rival group, which is construed as an act of aggression.

The trial ends with a speech by the principal defendant which, from that day on, Jameson will characterise in the privacy of his mind as Ntabaka’s question:

“My Lord, I understand that we will be found guilty of these beatings we have been talking about all these days now and that we will be punished. This I understand. But I wish to ask this. What has it to do with you, Sir?”

Alone in his office at nightfall, after the penalties have been imposed, after the case is over, Jameson watches the sun going down over the hills of the Transkei. These are his reflections:

“He concluded that this day, this accidental trial over which he had been called to preside, was truly the first time since he embarked on his career that the uncertainty which before had nagged sporadically, now really gnawed at him like a constant and ravaging illness, if still not fully clear in its meaning. He sorted out and sifted through his own thought processes. Since 1948, he agreed with himself, he had worried primarily that his own advancement was being seriously curtailed by the political change in the country. But now he could not avoid questioning the career itself, the point of his working life, inside and outside of himself; he questioned the meaning and validity and morality of everything he was doing and everything he was standing for, everything about himself. He felt come over him, not dilettantishly now, a sense of hopelessness and purposelessness that weighed a ton, and he said out loud in his good English accent: It’s all wrong.”

In Jameson’s reflections one can hear the spectral voices of George Orwell’s Winston Smith and J.M. Coetzee’s ageing magistrate, although it is clear from the nature of Shaun Johnson’s book that Jameson’s career is based on real events. It is fascinating to see the way in which entirely speculative works can bring into sharper focus tendencies emerging in the world of actuality. Indeed, as the philosopher George Santayana observed: truth is only believed when someone has invented it well. The Native Commissioner’s final admonition to his sons is to remember the Zulu greeting he taught them: Nyabonana. We See Each Other.

The works I have been discussing are concerned in part with the formation and gradual shaping of opinions; they are works about what happens when someone holds the wrong opinion. They cast light upon a matter of importance to the Commonwealth, namely, the preservation of certain crucial rights—the freedom to hold differing opinions, the freedom to speak freely. It will therefore now be useful to say a little more about such matters, although it will be apparent from what I have said thus far that unlike the authors of legal texts about human rights—of which there are many—I am interested not so much in the formal definition of rights, or the process of enforcement, but in social attitudes that bear upon freedom of speech: the informal pressures that lead to a dangerous conformity of thought; and in the prevailing orthodoxies that may eventually be imposed by an individual’s own “inner censor”.

Freedom of speech will be illusory if we all hold, or are expected to hold, the same opinion. Too often we are prepared to overlook this fact. In social situations conformity has always been with us, brought about too often by long-standing social habits, or by inertia. In the case of political correctness, an outlook that was supposed to nurture the expression of dissenting opinions is now, paradoxically, inclined to stifle that expression. This is why the works of our greatest writers remain essential to our social well-being. They respond to change, but they make us ponder. In holding up a mirror to life their task is to inform, to challenge, and to enlighten.

J.M. Coetzee’s novel Disgrace commences with a refusal by university authorities to accept a lecturer’s plea of guilty to the sexual harassment offence with which he is charged. The miscreant is required to go further and announce his repentance, before submitting to whatever is thought to be the “appropriate” penalty. “You charged me, and I pleaded guilty to the charge,” he remonstrates. “That is all you need from me.” His objection produces this response from the Chair of the Tribunal: “No. We want more.” The Chair says that what goes on in the lecturer’s soul is “dark to us”. And so the lecturer is directed to issue an apology—like Winston Smith being required to declare his love for Big Brother.

I note in passing that Coetzee’s novel, like his earlier work The Life and Times of Michael K, went on to win the prestigious Man Booker Prize for fiction. It is a little-known fact that the multi-national Booker company was once the largest enterprise in the colony of British Guiana. It dominated the local sugar industry at every level and continued in this role until sugar nationalisation in 1976, after a troubled period of decolonisation. A portion of the Booker wealth, it seems, is on its way back to the Commonwealth in the form of literary prizes.

Literature has a part to play in resisting the tendencies portrayed in these novels; by exposing absurdities; by expressing opinions which might not otherwise be voiced; by finding words for hidden feelings. Matthew Arnold put it this way in a short poem, “Below the Surface Stream”: