So Many Questions
Former Constitutional Court justice Zak Yacoob has thrown his weight behind a campaign to stop the government leaving the International Criminal Court. Chris Barron asked him . . .
Why? Because I believe that international criminal justice is a very important area of activity.
Is it being well served by the ICC? I think it is. It’s imperfect. There are problems. For example, that the US, Russia and China will never, ever come before the ICC.
To what extent does that discredit the whole concept? I don’t think it discredits the whole concept. I think we must stay within it. Either you stay out of the UN and international affairs altogether and go into a kind of isolationism of your own, or you stay in, in the interests of ensuring international justice. There are some horrible things which are so horrible that even sitting heads of state ought not to be allowed to do them. We must remember that during apartheid, one of the very important things which pushed us forward was that apartheid was regarded as a crime in international law.
What does this say about the government’s attachment to human rights? Our government has been getting more and more distant from human rights. You don’t hear them talking a human rights language any more. We’re getting to a stage where leaders are regarded as more important than the sufferings of the people.
What about their argument that the ICC makes it more difficult to broker peace in Africa? There is a relationship between peace and justice. You have to have a measure of justice to be able to have peace. If you go too far in abandoning justice for the sake of bringing about peace, you actually contribute towards greater violence. All a leader has to do is commit more and more violence and say to other countries: “If you trouble me with this [ICC prosecution], I will cause more violence in my country, but if you decide not to co-operate with those who want to prosecute me, then I will consider stopping violence.” If leaders start saying that, then there is trouble.
Could some deal like this be behind the government’s refusal to arrest Omar al-Bashir? I don’t know what deal Bashir made with the South African government, but it may well be that they perceived it would be to the advantage of the future of Sudan to persuade him to stop his violence. But this is the very way you encourage violence and compromise peace.
What about the argument that the ICC is biased against African countries? The ICC is not biased against African countries. Most of the matters in relation to Africa that have been dealt with by the ICC have been referred by the African states themselves. So there is no bias.
Is there too much bias in favour of the US, Russia and China? There I would agree completely. And I think that is horrendously bad. But you can’t say that because you can’t prosecute “A”, you must not prosecute anybody.
Looking at the crimes against humanity being perpetrated in Africa, how effective has the ICC been? Not particularly effective, because most of these bodies have limited resources and limited personnel. I have no doubt the ICC has done as much as their resources allow. But the fact that they have not been able to do enough is not a reason to get out. It’s a reason to strengthen them, ensure that they have more personnel and more money.
The high court has ruled that the government’s decision to withdraw is unconstitutional and invalid. Doesn’t this mean your battle has been won? No, far from it. The high court has ruled that they must go to parliament first. If the high court held that it is unconstitutional in substance, then that means that parliament can’t do it. But it has ruled that it is procedurally irregular, meaning that if parliament passes a law first, then the government can do it.
A straight majority in parliament would be enough? Well, there is an interesting argument that the decision to withdraw might be contrary to the constitution, bearing in mind our international law obligations. So I don’t think it follows as surely as night follows day that if parliament does it, it will be OK.
Do you think the government is trying to engineer a more compliant judiciary? No. The fact that the president wants to appoint Ray Zondo as deputy chief justice — Zondo cannot by any stretch of the imagination be described as a government-compliant judge.
What about their stated desire to change the appointment criteria for the selection of judges? Impossible to comment until one sees the detail of that.
Are you concerned that Zuma has removed three respected members of the Judicial Service Commission? Yes, I am concerned about that. But he’s got to appoint advocates to replace them and advocates are part of an independent profession. It will be difficult to appoint advocates in private practice who will just do their bidding.
The ANC says it wants judges with a “progressive philosophy”. What do they mean? I don’t know. I don’t know the ANC at all now. It’s not the ANC that I knew.