JAUNDICED EYE

If the world wants a measure of South Africa’s commitment to the treaties and conventions it signs, it now has one. 

Our president this week made it clear that it’s pretty much non-existent. When push comes to shove, with the African National Congress, expediency will always triumph over principle and legal obligations. Always. 

In an affidavit that Cyril Ramaphosa wanted to be kept secret but which the judge ruled a public document, the president said that his government could not and would not execute an International Criminal Court war crimes warrant for the arrest of Russia’s President Vladimir Putin. This would be the second time that South Africa, an influential founding signatory to the Rome Statute that established the court in 1998, would have reneged on its commitments. ___STEADY_PAYWALL___

On the upside, the proceedings before the Gauteng High Court showed — as did the Constitutional Court's refusal last Friday to hear an appeal by former president Jacob Zuma against being returned to jail to complete the sentence that he had escaped courtesy of a fake medical parole — the continued resilience of the judiciary. That robustness is remarkable since it prevails despite the ANC’s determined attempts at political capture via the partisan and ethically compromised Judicial Services Commission that appoints our judges.

It’s a reminder, too, of the importance of opposition parties and civic action groups continuing to aggressively challenge bad laws, executive overreach, procedural secrecy and administrative failures. It’s a strategy that, despite carping about “lawfare” and the frustration of some ANC leaders over judges’ “subversion” of the will of the electorate, it’s probably the single most important means of protecting a fraying and besieged democracy. 

The original High Court action over Zuma’s politically contrived release was brought by the Democratic Alliance, the Helen Suzman Foundation and AfriForum. The application challenging the Presidency to commit to arresting Putin was brought by the DA.

In the Putin matter, Ramaphosa’s affidavit reads: “Russia has made it clear that arresting its sitting president would be a declaration of war. It would be against our Constitution to risk engaging in war with Russia.” It would be a “reckless, unconstitutional and unlawful exercise of the powers conferred upon the government to declare war with Russia by arresting President Putin”. 

One can understand why Ramaphosa would want to keep such an illogical, legally threadbare and abjectly submissive document secret. In essence, he is saying that South Africa will gaily sign international conventions but if asked to abide by them, will, on the flimsiest pretexts, fail to honour its obligations.

Or as the DA argued in its affidavit, Ramaphosa was asking the court to excuse the government from its international and domestic law obligations because a foreign state was threatening SA with illegal war if it complied with those obligations. 

“Were such a threat to be given credence, it would be the end of the rule of law both in international law and domestic law. It would also be the end of SA's sovereignty. Law would not rule. Brute might would rule. It is a tragedy that the President of a democratic SA, built on the rule of law, would make such submissions to a court.”

This is a lucid and powerful rebuttal of Ramaphosa. The DA wisely avoids petty politics by refraining from pointing out that Russia, the aggressor threatening all-out war, is the country with which ANC vows it has unbreakable fraternal ties. With friends like that, who needs enemies, nê?

The ruling by Deputy Judge President Roland Sutherland may be legally moot in light of the announcement on Wednesday that Putin will “by mutual agreement” not attend and instead will be represented by Foreign Minister Sergey Lavrov. However, the DA says it will proceed with its application, seeking an order that the government publicly commits to executing the ICC warrant whether Putin “is coming to the BRICS summit or not”.

Irrespective of that quest, the issues raised by the proceedings remain very much alive.

For one, it would seem to the layman that the DA’s application comes perilously close to asking the judiciary to intervene preemptively in an unfolding action by the executive branch. Because of the doctrine of separation of powers, that would be an obvious constitutional no-no. 

However, the separation of powers is arguably trumped if the executive is planning to break the law. And previous actions of the ANC government provide ample precedent for concern. 

In almost identical circumstances, the 2015 ANC flouted its constitutional obligations when it failed to implement an ICC warrant to arrest another genocidal pal of the ruling party, Sudanese President Omar al-Bashir. As appears to have been the case with Putin now, the government refused to publicly state whether it would fulfil its treaty obligations while, behind the scenes, providing al-Bashir with assurances that it would be safe to attend.

At the time, the government’s actions were described by the ICC as an unlawful dereliction of duty. Our Constitutional Court agreed, describing the government’s behaviour as “disgraceful” and illegal. 

If experience shows us that the ANC government’s signature to an international agreement is not worth the parchment it’s penned on, then one can plausibly argue that it’s reasonable for an opposition party to demand that the government commits itself, ahead of time and in court, to carrying out the law. 

A further embarrassment for Ramaphosa is that he has again been caught — let’s be generous here — misrepresenting reality. 

Following Sutherland’s ruling, the Presidency issued a statement saying that Ramaphosa “was never opposed to making [his affidavit] public”. This was supposedly only done “in compliance” with an ICC directive that require interactions on possible arrests secret. Except, oops, that the ICC denies that this was a requirement on its part.

Ramaphosa, for his part, has hailed Putin’s decision not to attend the BRICS summit as a diplomatic victory. 

Meanwhile, the Kremlin, which could have saved its dear friend Ramaphosa much trouble by simply agreeing at the outset that Putin would not attend, is playing the wide-eyed innocent. It has denied telling South Africa that arresting Putin would mean war, although it added ominously: “Everyone understood, without having it explained to them, what an attempt to infringe on Putin’s rights would mean. 

With friends like that, who needs enemies, nê?

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