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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.
*Howard Varney works with the International Centre for Transitional Justice
