SA’s ‘moral voice’ is a cry­ing sham

CityPress - - Voices & Careers - Howard Var­ney voices@ city­press. co. za

In 2009, South Africa was faced with a choice be­tween ap­peas­ing the po­lit­i­cal elites of Africa or abid­ing by its own law and Con­sti­tu­tion. This choice had to be made fol­low­ing a de­ci­sion taken at an African Union (AU) assem­bly to with­hold co­op­er­a­tion from the In­ter­na­tional Crim­i­nal Court (ICC) in re­spect of ex­e­cut­ing the ar­rest war­rant for Su­danese pres­i­dent Omar al-Bashir.

As a re­spon­si­ble mem­ber of the com­mu­nity of na­tions, South Africa chose to re­spect its in­ter­na­tional treaty obli­ga­tions. A gov­ern­ment spokesper­son an­nounced that while South Africa had reser­va­tions about the pur­suit of the case against al-Bashir, he would be ar­rested if he en­tered South African ter­ri­tory. The same spokesper­son said his gov­ern­ment would not act “out­side the frame­work of the law”.

This month, South Africa was faced with a sim­i­lar choice. This time around, rather than of­fend the big men of Africa, our gov­ern­ment chose to trash our Con­sti­tu­tion and the rule of law – the very fab­ric of our post-apartheid demo­cratic or­der.

While pro­mot­ing im­punity at the con­ti­nen­tal level is sim­ply busi­ness as usual, do­mes­ti­cally the wil­ful dis­re­gard of a court or­der has se­ri­ous ram­i­fi­ca­tions for our con­sti­tu­tional or­der. Although court or­ders have been qui­etly ig­nored be­fore, this would be the clear­est ex­am­ple of open de­fi­ance of the courts by the ex­ec­u­tive. Gov­ern­ment is in ef­fect say­ing it is above the law. If the courts can no longer act as a check on the abuse of power by the ex­ec­u­tive, then it calls into ques­tion the very in­tegrity of the Con­sti­tu­tion it­self.

If cen­tral gov­ern­ment in­structed or­gans of state or of­fi­cials to dis­obey a court or­der, this con­sti­tutes a se­ri­ous threat to the doc­trine of sep­a­ra­tion of pow­ers. Un­der the Con­sti­tu­tion, the ju­di­ciary stands as an equal part­ner with the leg­is­la­ture and the ex­ec­u­tive. How­ever, it re­lies on the other branches of gov­ern­ment to ef­fect its or­ders.

If the ju­di­ciary is to be an ef­fec­tive guardian of the Con­sti­tu­tion and the Bill of Rights, its moral au­thor­ity must be re­spected. When the courts can­not stand be­tween the pow­er­ful and the pow­er­less, we are fac­ing a grave con­sti­tu­tional cri­sis. Should lawyers con­tinue to bring cases be­fore the courts when there is no guar­an­tee that the state will com­ply with court or­ders? Should judges con­tinue to serve on the Bench when they know gov­ern­ment will openly defy their or­ders? In­deed, judges will now have to con­sider whether their oaths of of­fice re­quire them to step down from the Bench.

The usual and shrill jus­ti­fi­ca­tions are trot­ted out by the rul­ing party for the break­ing of our le­gal obli­ga­tions. If Western lead­ers are not pros­e­cuted for das­tardly deeds, why should African lead­ers have to face jus­tice? This con­ve­niently over­looks the facts. Aside from one case, all the ICC cases have arisen as a re­sult of re­quests for ac­tion from African states them­selves or from the UN Se­cu­rity Coun­cil.

There can be lit­tle doubt South Africa is ex­pe­ri­enc­ing one of the most shame­ful pe­ri­ods in its history. We are no longer a bea­con of hope and in­spi­ra­tion to the world. Of all na­tions, we were ex­pected to side with vic­tims of mass mur­der, rape, mu­ti­la­tion and tor­ture – not with their per­se­cu­tors. South Africa can no longer be counted on to stand up for the op­pressed and vic­tims of mass atroc­i­ties.

How­ever, we can be counted upon to side with those ac­cused of per­pe­trat­ing geno­cide and crimes against hu­man­ity.

Since South Africa does not con­sider it­self bound by the treaties it rat­i­fies, and is will­ing to break in­ter­na­tional law to serve nar­row geopo­lit­i­cal in­ter­ests, it poses a se­ri­ous threat to the cre­ation of a vi­able sys­tem of in­ter­na­tional jus­tice. In short, we are well on the road to be­com­ing a rogue state.

South Africa played a pi­o­neer­ing role in the es­tab­lish­ment of the ICC and was one of the first coun­tries to rat­ify the court’s en­abling Rome Statute and in­cor­po­rate it into do­mes­tic law. How­ever, the brazen flout­ing of the Rome Statute by South Africa now serves to un­der­mine the en­tire pro­ject of in­ter­na­tional crim­i­nal jus­tice.

Since South Africa has no in­ten­tion to hon­our its obli­ga­tions un­der the Rome Statute, it has no busi­ness be­ing part of the com­mu­nity of na­tions seek­ing to end im­punity for crimes that threaten the peace and se­cu­rity of the world. Re­main­ing a state party to the statute is to per­pet­u­ate a sham. Var­ney works with the In­ter­na­tional Cen­tre for

Tran­si­tional Jus­tice

Should SA stop be­ing party to the

Rome Statute?

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