Some of the details of how President Cyril Ramaphosa and South Africa’s diplomats got South Africa out of its bind over Russian President Vladimir Putin’s attendance at the upcoming Brics summit are revealed in the president’s affidavits to the Pretoria high court, the latest of which was publicly disclosed late on Wednesday.
On Wednesday, shortly before 1pm, presidency spokesperson Vincent Magwenya announced that Putin would not be attending the summit — “by mutual agreement”.
In an affidavit to court, filed on Tuesday, but only publicly disclosed after the public announcement on Wednesday, Ramaphosa said he had confirmed to the other Brics governments in a note verbale that South Africa would be hosting the Brics summit. “Importantly, I confirm President Vladimir Putin will not be travelling to South Africa to attend the summit.” But he was still consulting them about “the appropriate level” of delegations, he said.
He said he had spoken to Brazilian President Luiz Inacio Lula da Silva in person at the Summit for a Global Financing Pact in Paris, which had happened on June 22 and 23. “At this meeting the president of Brazil agreed that the preferred option, being that President Putin would not attend the summit in person, had his support.”
Before that, he had spoken to Putin when he travelled to Russia on June 19. “At this meeting I shared our position with him, and he committed that he would apply his mind to it, discuss the matter with his own team and then revert to me,” he said.
Following this, Dirco officials had been working on arranging an opportunity to further consult with Putin, the president of China and the prime minister of India. “I spoke to President Putin on July 15 2023,” he said.
“To sum up the position: I have had consultations with the president of Brazil, and the president of Russia ... Dirco has been making every effort to ensure that I get an audience with the president of China, as well as the Indian prime minister,” said Ramaphosa.
It would be a reckless, unconstitutional and unlawful exercise of the powers conferred upon the government to declare war with Russia by arresting Putin.
— President Cyril Ramaphosa
“Until I am able to do so, I ask this court and DA to please keep this affidavit confidential. The Brics works on the basis of consensus. Releasing this affidavit before I have had the opportunity to speak with my India and Chinese counterparts may strain diplomatic relations ... and be in violation of the consensus model of the Brics. I really do not wish for that to happen,” he said.
In his earlier affidavit, filed confidentially in court towards the end of June, Ramaphosa revealed he had also been pinning his hopes on a “consultation” process with the International Criminal Court (ICC).
Ramaphosa’s earlier affidavit was made public on Tuesday after the court ordered its disclosure.
This affidavit revealed a consultation process with the ICC in terms of Article 97 of the Rome Statute and that South Africa had even “appeared in a hearing before the chamber”.
This was happening alongside Ramaphosa consulting all Brics leaders — one by one — on “a responsible way to deal with legal and diplomatic conundrum”, he said in his earlier affidavit.
Article 97 allows a state party like South Africa to consult with the ICC when it has identified “a problem which may impede or prevent the execution” of a request for co-operation from the ICC. The article lists what kinds of problems these may include. But Ramaphosa said this list is not exhaustive and may include other problems.
Other problems “may include situations where implementing the request for arrest and surrender of a person threatens the national security, peace and order of a state”, he said.
Referring to media reports, Ramaphosa said Russia has made clear that arresting Putin would be tantamount to declaring war on Russia. “It would be a reckless, unconstitutional and unlawful exercise of the powers conferred upon the government to declare war with Russia by arresting Putin,” he said.
“My government and I have constitutional obligations to protect the national sovereignty, peace and security of the republic and its people.”
He added the South African government was engaged in efforts to facilitate a peaceful resolution to the Russia-Ukraine war: “The republic obviously faces problems with implementing an arrest and surrender of a sitting head of state of one of the parties to the war, while preaching a peaceful solution and seeking to broker peace,” he said.
Ramaphosa said the Article 97 process is a lawful one provided by the Rome Statute. Using this process was consistent with South Africa’s constitutional and legal obligations.
“Should the ICC consultations come to zero, and South Africa hosts the Brics conference, it shall do so in a manner that does not breach its legal obligations. But the latter is only necessary if the ICC’s consultations do not yield an outcome by which South Africa is relieved from the obligation to arrest President Putin if he comes to South Africa,” said Ramaphosa.
It appears it was Ramaphosa’s diplomatic engagement with his Brics counterparts that resulted in the ultimate decision that Putin would not attend. It is unclear if there has been an outcome to the Article 97 process and, if so, what it was.
In a replying affidavit from the DA, DA attorney Elzanne Jonker said Ramaphosa’s reliance on Russia’s threat of war was “startling”.
Jonker’s affidavit was filed after Ramaphosa’s first confidential affidavit but before his latest one. It was penned by Jonker because, at that stage, even DA leader John Steenhuisen had not seen Ramaphosa’s affidavit.
“Tellingly the president relies on hearsay news reports, not even directed at South Africa, rather than any direct engagements with the Russian government,” said Jonker.
She said that essentially Ramaphosa was asking the court to excuse the government from its international and domestic law obligations because a foreign state is threatening war. “Were such a threat to be given credence, it would be the end of the rule of law ... it would also be the end of South Africa’s sovereignty,” she said.
“Law would not rule. Brute might would rule. It is a tragedy that the president of a democratic South Africa, built on the rule of law, would make such submissions to a court.”
Jonker said she agreed that any risk of armed conflict with Russia should be avoided. But the obvious solution was to disinvite Putin to the summit. “The president never suggests that Russia would declare war merely for removing Russia from our guest list,” she said.
Ramaphosa’s reason for not disinviting Putin, said Jonker, was that to do so “would be impolite or against the principles of comity”. But the threat of offending another state can never justify the breach of the government’s legal obligations. She added that the ICC had previously made it clear that any process under Article 97 did not suspend South Africa’s obligations.
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