Bad Precedents in International Criminal Law: The Case of South Africa

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President Zuma

By Dr. Munyonzwe Hamalengwa

Why does South Africa, a former beacon of hope in international criminal law continue to set odious precedents in international criminal law? The latest one involves granting diplomatic immunity to the wife of a sitting president when such is not called for under the circumstances of the criminal allegations and evidence involving Grace Mugabe in South Africa. Why did South Africa rush to grant immunity even before South African lawyers could present their arguments in court? If this facility is not overturned by the South African judiciary, it will be an infamy in international criminal law, a very inglorious precedent. The next thing that will likely happen is for wives of presidents going on rampage in foreign countries under cover of diplomatic immunity. Already Mugabe’s children are banned from travelling to several countries because of their misbehaviour stemming from who they think they are. In Zimbabwe they are virtually immune from any law.

The diplomatic immunity precedent is not the first such atrocious precedent  set by South Africa in international criminal law. There are several which are difficult to conjure given what had been expected of South Africa during and after its birth from the embers of Apartheid which had trashed international criminal law and labelled a criminal state.

South Africa with all its help from international criminal law previously has applied to leave the International Criminal Court because the International Criminal Court had litigated against South Africa for its act of allowing war criminal Al Bashir of Sudan escape from South Africa by its refusal to honour an outstanding warrant for crimes against humanity against Al Bashir. The South African judiciary held against South Africa and clearly stated that its behaviour in allowing Al Bashir to escape accountability when there was a live warrant, is a violation of international criminal law. The International Criminal Court, in a recent judgment against South Africa, stated the same thing. Two related negative precedents are rolled into one here: 1. The ignoring of an outstanding warrant to arrest Al Bashir by South Africa, and 2. The rush to apply to leave the International Criminal Court because of the entanglement involved in number 1 above. If nations behaved in a knee-jerk fashion in every situation that is not favourable to them, international law and international criminal law, diplomacy, etiquette etc would collapse and so would the world as we know it today.

A humongous negative precedent was set by South Africa when it initially opposed victims of apartheid who sued multinational corporations in New York under the Alien Tort Act which permits foreign victims of human rights violations to sue in the Untied States in furtherance of the precepts of universal jurisdiction. The Alien Tort Act is a form of accountability so that those who commit atrocities abroad do not escape to the United States and therefore out of reach of the jurisdictions whence they committed the crimes. Multinational corporations were in complicity with the apartheid regime. South Africa failed to prosecute these corporations and hence victims decide to sue on their own. South Africa vehemently opposed these private victims initiatives under the pretext that they will damage foreign relations and the inflow of foreign capital in the South Africa. My theory is that these suits eventually failed because of the initial opposition by the South African government to victims of apart grid launching these suits abroad. Of course, this is not the only reason these suits failed in New York.

The original sin in terms of South Africa’s setting a bad precedent in international criminal law is the failure to prosecute apartheid criminals who did not apply for amnesty or immunity from prosecution for committing war crimes and crimes against humanity under apartheid. South Africa did also not prosecute vigorously or earnestly those whose applications for immunity or amnesty  were rejected by the Truth and Reconciliation Commission (TRC). The Constitutional Court of South Africa (CC) in the BASSON case directed the South African government that South Africa has an obligation in international criminal law to prosecute criminals against humanity within its borders. So we have apartheid criminals enjoying their impunity to today in South Africa.

All these negative precedents exist in an envelope of a most atrocious precedent of them all: the politicization and utter capture of the Director of Public Prosecutions(DPP) by the state. This office is an instrument of power play by the President of South Africa. It is a most corrupt office where charges are laid or withdrawn according to the prevailing political winds. This office is a trophy possession and apartheid did not relinquish it abruptly. Apartheid criminals continued to control it ensuring that apartheid criminals were not prosecuted or if prosecuted, were not convicted because they were deliberately not prosecuted valiantly. By the time the new South African government eventually began to control this trophy prize, the rot had infected the criminal justice system and they needed it themselves to hide their corruptive propensities.

South Africa is a cesspool of bad precedents in international criminal law. The only shining light in that country is the independence and integrity of its judiciary. Now that is a worthy precedent to emulate. An independent, impartial, fearless and educated judiciary will set you free. You need not look further abroad than the South African judiciary and compare it to all other judiciaries and come to your own conclusion.

Dr. Munyonzwe Hamalengwa teaches Criminal Law at the School of Law, Zambian Open University and is the Author of: Getting Away With Impunity: International Criminal Law and South African Apartheid Criminals


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