PETER FABRICIUS' MISLEADING ARTICLE ON THE CHIEF JUSTICE
At the heart of the exchange of ideas at the Conference referred to in Peter Fabricius's article, was how relations between Africa and the ICC could be mended to strengthen the role of the ICC as embodied in the Rome Statute. Its role is to secure world peace, stability and justice by putting an end to impunity for the perpetrators of gross human rights violations. And a discussion of the already strained relationship between the AU and the ICC, is by its very nature a highly politicised matter. There was thus very little room for the kind of judicial detachment that Fabricius seeks to lecture the Chief Justice on.
That engagement obviously entailed, among other things, encouraging those African countries and others elsewhere that have not ratified the Rome Statute to do so and subject themselves to the jurisdiction of the ICC.
In the course of addressing these important issues, it was necessary for the Chief Justice to highlight perceptions that have hitherto bedevilled the relationship between the ICC and Africa. Knowing that the ICC only steps into the arena when atrocities have already been committed, he remarked that the ICC addresses symptoms as opposed to the root causes of atrocities and that it was necessary that the root causes of gross human rights violations be addressed.
The Chief Justice effectively said that world peace, stability and justice would be difficult to achieve for as long as some members of the UN Security Council and their allies enjoy impunity for the atrocities they may in fact have committed whereas they happily cause steps to be taken against other countries, particularly in Africa. This inconsistency had to be discussed and possibly reviewed, he said.
He added that in so far as the Rome Statute and the ICC are regarded as effective instrumentalities for the eradication of gross human rights abuses and impunity, then every country rich or poor, powerful or vulnerable that believes so, should be true to its conviction and ratify the Rome Statute. It is hypocritical of any country, he said, particularly permanent members of the UN Security Council who have the power to refer matters to the ICC as they reportedly did with Sudan and Kenya, to participate in decision-making processes that result in other countries having to face justice but never themselves.
Constitutionalism dictates that regime changes be compliant with the Constitution of a particular country. Sponsors of unconstitutional regime changes, which are often accompanied by gross human rights violations, must be named and shamed.
Peter Fabricius seems to be confusing the UN Security Council with America. As we understand the position it is the UNSC, and not a single country, that has the power to refer atrocities to the ICC for action. At no stage did the Chief Justice mention America. If Fabricius is privy to information about America's involvement in gross human rights violations or unconstitutional regime changes, then he must come out clean and not seek to articulate his concerns through the Chief Justice.
It is difficult to appreciate how reference to attempts to falsely accuse the Chief Justice of crime and an indication that such attempts are often provoked by frankness, justify the insinuation that the USA might be responsible for framing him.
It is Fabricius who is trying too hard to bring the Chief Justice on some collision course with the USA. If there is any "Maphatsoe moment" in this saga, whatever it means, it is "Fabricius's Maphatsoe moment". He would do well to stop these cheap point-scoring and stereotyping endeavours and help the world to focus on what needs to be done to eliminate impunity wherever it exists and achieve lasting world peace, stability and justice.
For the record, the Chief Justice did not accuse any country of any wrongdoing. It is a figment of Fabricius's creativity.
Ms Lulama Luti is spokesperson for the Chief Justice Mogoeng Mogoeng.
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