Bokamoso | We must protect the foundation of our Constitutional Democracy


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On Tuesday this week, I gave notice in the National Assembly (NA) of a motion of impeachment against President Zuma.

The events that led to the escape of Sudanese President Omar Al-Bashir (Al-Bashir) in June this year represent a clear violation of the President’s oath to “obey, observe, uphold and maintain the Constitution and all other law of the Republic.” Moreover, they serve as nothing less than grounds for his removal from office in terms of section 89(1)(a) of our Constitution.

Some have described our notice as a “publicity stunt” or as “waste of time”, saying that we lack the numbers to succeed in any process relating to the removal of the President. Such assertions are ludicrous. We are not pursuing this action for media coverage. We are pursuing this action in fulfilment of the mandate given to us by the electorate.

We may not have a majority in the National Assembly. But we would be failing in our duty to the over four million voters who placed us in Parliament if we did not act against such an affront to our constitutional democracy as the Executive’s actions on 15 June this year.

The Democratic Alliance (DA) believes in the supremacy of the Constitution. Together, with the respect for the rule of law, our Constitution, which so many dedicated their lives towards bringing into being, is the bedrock of our democratic state. The DA will therefore do all within its means to protect our constitutional democracy and most particularly, the fundamental principle of separation of powers that underpins it.

Al-Bashir is wanted by the International Criminal Court (ICC) under two warrants of arrest issued on 04 March 2009 and 12 July 2010 respectively. Charges include murder, extermination, forcible transfer, torture, rape and genocide. This stems from the slaughter of 300 000 fellow Africans in Darfur and the displacement of approximately 2.5 million people as a result of the actions of the Sudanese government led by Al-Bashir.

On 15 June this year, Al-Bashir was allowed to depart from South Africa following his attendance at the African Union (AU) summit in Johannesburg. As a signatory to the Rome Statute that established the ICC, enacted into South African domestic law through the Implementation of the Rome Statute of the International Criminal Court Act of 2002, the South African government had a legal obligation under both international and domestic law to arrest Al-Bashir.

Accordingly, the Southern African Litigation Centre approached the Gauteng North High Court during the AU Summit for an order compelling the government to give effect to its legal obligations and arrest Al-Bashir.

In 2013, the African Union (AU) convened an extraordinary summit to discuss the role of the ICC in Africa. This summit ended with African heads of state adopting an amended protocol on the Statute of the African Court of Justice and Human Rights. The protocol contains a provision granting immunity from prosecution to serving AU heads of state and other officials. A call was also made to African states to withdraw individually from the Rome Statute.

On 14 June, the Government’s lawyers stated before court that the South African cabinet had taken a decision to grant Al-Bashir immunity from arrest on the grounds that that this AU decision “trumped” the government’s obligation in terms of the Rome Statute and the domestic act to arrest him as soon as he landed on South African soil.

The Director-General of the Presidency and Secretary of the Cabinet, confirmed that Cabinet was aware of the AU’s invite to Al-Bashir to attend the AU Summit and the President confirmed his attendance. Cabinet was also very aware that South Africa is a State Party to the Rome Statute and therefore obliged to give effect to any ICC warrant of arrest.

On 13 June, the ICC made it clear that there was “no ambiguity or uncertainty with respect to the obligation of the Republic of South Africa to immediately arrest and surrender Omar Al-Bashir to the Court, and that the competent [South African] authorities…are already aware of this obligation.”

A delegation of the South African government was informed of this on 12 June, with the ICC making it very clear that there were no grounds on which South Africa’s obligations to arrest Al-Bashir could be waived.

Cabinet, the head of which is President Zuma, decided to discuss whether South Africa was required to arrest Al-Bashir. They accepted and decided that their primary obligation was to uphold and protect Al-Bashir’s immunity and therefore should not arrest him. In plain terms, the Executive of South Africa decided to ignore a South African law and an international statute to which we are a party.

This decision led to the escape of Al-Bashir on 15 June 2015 in contravention of an interim court order prohibiting him from leaving South Africa. Al-Bashir was in fact transported to Waterkloof Air Base by President Zuma’s Presidential Protection Unit.

On 15 June 2015, a full bench of the Gauteng North High Court declared the conduct of the Ministers of Justice and Constitutional Development; Police; International Relations and Cooperation; Home Affairs; their respective Directors-General; the South African Police Service; the National Director of Public Prosecutions; the Head of the Directorate of Priority Crimes Investigation and the Director of the Priority Crimes Litigation Unit to be inconsistent with the Constitution of South Africa.

Following from this order, the Court considered whether a Cabinet Resolution coupled with a Ministerial Notice are capable of suspending South Africa’s duty to arrest a head of state against whom the ICC has issued an arrest warrant.

The court found as follows:

  1. The actions of the Executive in allowing Al-Bashir to leave the country on 15 June constitute a clear violation of the interim court order granted on 14 June.
  2. No immunity could have been conferred on Al-Bashir.
  3. The Rome Statute expressly provides that heads of state do not enjoy immunity under customary international law.
  4. The Implementation of the Rome Statute of the International Criminal Court Act of 2002 states that immunity that would otherwise have been attached to Al-Bashir as Head of State is excluded or waived in respect of obligations under the Rome Statute.
  5. The fact that our Rome Statute obligations were domesticated by a South African Act represented a clear decision by the legislature not to confer blanket immunity on AU bodies, meetings and individuals that attend them.
  6. Decisions of the AU cannot trump South Africa’s obligations under the Rome Statute.
  7. Due to the domestic enactment of the Rome Statute, its binding status on the South African government is clear.

This decision is now the subject of an appeal by the Government. What cannot be disputed though is that the South African government, led by President Zuma, violated the principle of separation of powers by allowing Al-Bashir to escape the country on 15 June. They did this by defying clear decisions by the legislative branch of government which domestically enacted the Rome Statute and an interim order granted by the judicial branch of government.

Under President Zuma, South Africa has seen the slow erosion of the fundamental constitutional foundation of separation of powers with his Executive showing an increasing contempt for the Judiciary and Legislative branch of government.

I have noted the attempts by some to introduce into the Al-Bashir debate, concerns relating to the functioning and composition of the ICC. However, these concerns are not relevant. If the South African government wants to with draw from the ICC, it should then withdraw and introduce measures to repeal the domestic implementation act in Parliament. Until such a time though, we remain bound by both our domestic and international obligations.

This issue is not about the ICC. It is about the principle of separation of powers and President Zuma’s contravention of our Constitution as Head of the Executive. Under President Zuma’s leadership, there was clear contravention of a direct court order and direct breach of domestic and international law.

The DA will move to have our motion debated in the House on 18 August, whereupon a vote by a third of the House will be sufficient to establish an ad hoc committee to investigate the impeachment charge. We will call upon fellow opposition parties to support this motion.

The DA cannot stand by and just accept the blatant flouting of the Constitutions and its provisions. We owe it to the people of this country and future generations to fight for the foundation of our democracy.

Mmusi Maimane
DA Leader

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