LAST week in London and Geneva, I addressed groups of somewhat wary investors on SA’s prospects. There were reassuring nods from these audiences when I suggested that for all our challenges and travails, broadly speaking, the rule of law was intact. After all, were we not the nation that 21 years ago, despite the odds, founded a constitutional democracy on our stony southern soil?
Explicit in its sophisticated and clear constitutional texts, and at its core was the fundamental principle that even the designs of the most powerful government would bend before the supremacy of the law. Many constitutional instruments might have been damaged in the past six years, but this essential differentiator between law-bound nations and rogue regimes placed SA on the right side of this jagged divide.
This week, after the government both allowed Sudanese President Omar al-Bashir to attend the African Union (AU) summit in Sandton and then arranged his escape from the coils of international justice, renders my overseas assurances redundant.
There are so many contemptible aspects of the President Bashir saga that it is hard to enumerate them. The government showed contempt for its own Constitution, for its own judiciary and for its own solemn commitments to public international law.
It made a mockery of its credibility and the credulity of its own citizens and the world. It even showed contempt for its own legal counsel. Pity advocate William Mokhari, for example, counsel for the Department of Home Affairs, who was provided by his client with demonstrably fictitious instructions.
He told the court early in Monday’s proceedings that President Bashir was not on the passenger manifest of the departing Sudanese jet. In simple terms, the departure of a president from an air force base would have been impossible without both the knowledge and assistance of the government Mr Mokhari was representing in court. Little wonder that with masterful understatement, Judge President Dunstan Mlambo found the actions of the government — thumbing its nose at a court order, barring President Bashir from leaving SA — “inconsistent with SA’s Constitution”.
But the actions and inaction of the Presidency and the government are highly consistent with the famous dissenting judgment of US Supreme Court Judge Louis Brandeis. Back in 1928, in the case of Olmstead v the US, he declaimed: “Our government … teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for the law; it invites Everyman to become a law unto himself; it invites anarchy.”
The current forces of anarchy here hardly need a further invitation to take the law into their own hands, from violent protests to illegal electricity connections and non-payment of e-tolls. But now with the state itself breaking its own legally enshrined commitments, it is indeed a case of “every person for themselves”.
Presumably, the expediency of solidarity with an international fugitive like President Bashir trumped other considerations for our government. And given that the chairman of the AU is a nonagenarian dictator, Zimbabwean President Robert Mugabe, we will be judged by the company we keep.
But even though SA’s moral authority has sharply diminished in recent times, there was an expectation that SA would not simply align itself with the lowest common authoritarian denominators.
Never again will our moral voice, demanding justice for Palestinians or a rule-bound international order be received with anything but a sense of hollow irony; the sort of tribute that vice pays to virtue.
It is worth recalling that SA did not simply become a leading founding member of the International Criminal Court (ICC).
In 2002, in a Parliament of which Jacob Zuma, Jeff Radebe, Lindiwe Sisulu, Naledi Pandor, Rob Davies and the most senior members of today’s cabinet were members, we went one step further. We did not simply, in July 1998, sign up to the Rome Statute under which the ICC was founded. This is the judicial body, which according to the Centre for Constitutional Rights, has indicted Bashir on five counts of crimes against humanity, “including murder, extermination, forcible transfer, torture and rape”.
In addition, he faces two counts of war crimes for “intentionally directing attacks against a civilian population” and three counts of genocide.
Just to prove our serious intention to be bound by the newly formed ICC, Parliament unanimously (as I recall) enacted the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
As the High Court in Pretoria ruled on Monday, in a judgment rendered by a government incapable of enforcement, arresting President Bashir is not simply bowing down to western or anti-African forces. It is the direct consequence of section 4(3) of the ICC Act, in which our own Parliament decreed that South African courts would have jurisdiction “when a person commits a crime in terms of the act outside the territory of SA, but if the alleged perpetrator is present in the country after the commission of the offence”.
No provision in the statute provides any immunity for heads of state; indeed, the central purpose of the ICC is to bring to justice the most powerful figures whose domestic dominance would otherwise render their powerless citizens and victims incapable of having their day in court.
It was precisely this moral authority now embedded in our domestic law that allowed SA to criticise those nations including the US, Israel, Russia and China, that chose not to become signatory parties to it.
Notwithstanding this legal commitment, the African National Congress’s national executive committee managed at the weekend to issue a statement of breathtaking proportion. It declaimed: “The ICC is no longer fit for the purposes for which it was intended.”
So that’s that, then? A mere statement of the ruling party supersedes the solemn laws of its own Parliament, judgments of its own courts, and commitments entered into under public international law. In terms of the actions and inaction of the government in the hours that followed this declaration, it would appear that state agencies have placed ruling party writ above all others.
Last year, in a blow that undermined foreign-investor confidence, Trade and Industry Minister Rob Davies decided that the slew of investment treaty obligations entered into between SA and European Union countries were, similarly, “no longer fit for purpose”. But he at least had the good grace and common sense to substitute new, admittedly lesser, legislation. He did not rely on a one-paragraph party political statement to substitute for a legal undertaking.
I often remind audiences of the wisdom of Jan Smuts’s observation that “in SA, neither the best nor the worst ever happens”.
Events in recent days appear to be stress-testing this judgment to destruction.
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