Two court disputes test SA’s commitment to rule of law

First published by ISS Today

Are the planets aligning for South Africa to make a significant contribution to reforming the International Criminal Court (ICC) – just as it is planning to leave it?

Strong views were expressed at a seminar on South Africa and the ICC in Cape Town last week that South Africa should remain in the court. This is to both bolster international justice when it is under threat and to prove to the world – after the Zuma era – that South Africa remains committed to the rule of law. The seminar was organised by the Wayamo Foundation and the Africa Group for Justice and Accountability.

Justice Minister Michael Masutha gave the government and ruling party’s official position at the event. This is that South Africa should abandon the ICC mainly because it undermined the country’s international relations by not allowing it to grant immunity to sitting heads of state from ICC prosecution. The dispute stems from Pretoria’s failure to arrest Sudanese President Omar al-Bashir and surrender him to the ICC when he visited South Africa in 2015.

Last December Masutha tabled in Parliament the International Crimes Bill which would withdraw South Africa from the ICC and substitute the law that domesticates ICC jurisdiction with Pretoria’s own version of administering international criminal justice. This would differ principally from the Implementation of ICC Act by allowing immunity for the grave ICC-type crimes to sitting heads of state and government ministers.

But the International Crimes Bill has been languishing in Parliament for 10 months. This is one of several signs that the Ramaphosa administration is having second thoughts about leaving the ICC, Southern African Litigation Centre director Kaajal Ramjathan-Keogh told the seminar.

International Relations Minister Lindiwe Sisulu said in April that Masutha was determined, but others in government wanted the country to stay in to try to reform the ICC. Some believe Ramaphosa will kick this can – like a few other contentious ones – down the road until after elections next year to keep the ruling party united.

Max du Plessis, senior counsel and senior research fellow at the Institute for Security Studies, agreed that South Africa should try to effect change from within the court. That way the country could make a significant contribution to international affairs, upholding multilateralism and accountability ‘at a critical time when our Trumpian world is sorely in need of leadership that is inclusive and mature’.

The world was looking to Ramaphosa to show that South Africa was committed to the rule of law by leading on climate change, migration, trade, terrorism and transnational crimes, he said. Tackling these problems required strong states committed to accountability and human security.

Deputy ICC Prosecutor James Stewart agreed, saying the ICC needed a “close, collaborative and productive relationship with South Africa” to help the court become “the most effective instrument for … the protection of the most fundamental human rights”.

Du Plessis suggested that South Africa could best improve the ICC by helping to resolve the immunity issue. In a recent paper with Guénaël Mettraux, Du Plessis outlined a possible compromise: “South Africa (and others) will have to accept that immunities provide no defence or no bar to jurisdiction before the court. The court will have to accept that when it comes to requests for surrender or assistance, immunities remain relevant and that they cannot hope to waive them away on the basis of ever-changing legal arguments adopted by the (ICC’s) Pre-Trial Chambers.”

Du Plessis said South Africa – which is fortuitously about to go onto the UN Security Council – could direct efforts to improve that council’s contentious working methods on ICC referrals. For example it could insist that when the council sent a case to the ICC, and where that case involved the removal of immunity, the council must expressly state that.

South Africa was also ideally suited to act as a bridge between the Security Council and the African Union to help repair relations that were badly damaged by the al-Bashir row. And South Africa could ‘lead the pack’ in trying to overcome the ICC’s perceived bias against African criminals, while the court avoided cases elsewhere like Palestine or Syria where “powerful proxy states like the US and Russia would prefer the ICC to look the other way”.

Du Plessis and Ramjathan-Keogh also warned that withdrawing from the ICC would damage South Africa’s own interests at a vulnerable moment in the country’s history. Ramjathan-Keogh said leaving the ICC would “add to the discourse that SA is slowly unravelling in respect of lawlessness as the nation witnesses the degradation of the rule of law”.

She also told the seminar about another legal battle South Africa was fighting with the Southern African Development Community (SADC) Tribunal. On 30 August, SA’s Constitutional Court heard an appeal by the state against the 1 March high court decision that then president Jacob Zuma had acted unlawfully and unconstitutionally in signing and adopting a new SADC Tribunal Protocol in 2014.

This protocol would deprive SADC citizens of their rights to petition the tribunal for legal redress. The protocol that Zuma and other SADC leaders signed aimed to reduce the tribunal to a court only adjudicating disputes between SADC states.

That the South African state is appealing the high court’s decision seems to suggest that the Ramaphosa administration, like Zuma’s, wants to disempower the tribunal.

Ramjathan-Keogh is unsure. Either way, she notes that legally the tribunal still exists in its original form, with a mandate to hear petitions from individuals, as the 2014 Protocol has not been ratified by a single SADC state. In practice though, the tribunal is dormant because member states cut off its funding back in 2011 and stopped appointing judges and prosecutors.

She says SADC should be lobbied to re-constitute the tribunal. That should be another charge Ramaphosa must lead. The ICC and the SADC Tribunal present him with both opportunity and risk.

He could choose to signal to the world – including potential investors – that not much has really changed in South Africa since his predecessor radically perverted the law in the material interests of himself and his cronies. Or he could show the world – including those same investors – South Africa’s commitment to upholding the rule of law. DM

Peter Fabricius is an ISS Consultant