In recent weeks I have been asked more frequently whether I think the Brics summit in August should take place here or not. The question is asked because Russia’s President Vladimir Putin has been indicted by the International Criminal Court for war crimes committed by his army in Ukraine.
This follows an invasion he ordered in February last year and from which millions have lost their homes, fled Ukraine, been killed or injured. These facts are not in dispute. It is also true that thousands of Russian soldiers have been killed or injured in battle after the orders of their president.
Russia is the “R” in Brics, and so Putin is ordinarily entitled to join presidents Luis Ignacio da Silva of Brazil, Xi Jinping of China and PM Narendra Modi of India in South Africa. But there is a problem.
The ICC indictment of Putin obligates the South African government to arrest him as soon as he lands in South Africa. Alternatively, the government can partially avoid diplomatic awkwardness by informing him that because of this obligation, it advises that he deputises an appropriate replacement.
However, there appears to be much hand-wringing in the government and the majority ANC about what South Africa needs to do. This is unnecessary.
The Rome Statute was internationally formalised in 1998. All countries that signed on to it, and South Africa was one, had to codify it into domestic law to give effect to their respective commitments. Some countries such as the US, China and Russia declined to sign the statute, and therefore have no obligation to arrest anyone indicted for war crimes by the ICC.
On Nelson Mandela’s birthday, July 18 2002, parliament passed the Rome Statute of the International Criminal Court Act 27 of 2002. The next month it was signed into law by President Thabo Mbeki. The president signs a bill if and when he or she believes it conforms with the constitution.
That law is still on the books without a single amendment. Since the ANC is at the forefront of sowing doubts about South Africa’s obligations in this matter, it is important to place on record that the minister of justice and constitutional development at the time was Dr Penuell Maduna. He was a member of the ANC’s national executive committee.
The justice portfolio committee in parliament was chaired by a senior member of the ANC, and the majority of its members also came from the party. I also assume that it is not possible for any law to be endorsed by ANC members not to first have the approval of the ANC’s national executive committee.
This means that the obligation South Africa now has to arrest any war crime accused as soon as they set foot in South Africa was not imposed on the country by outsiders, but was voluntarily created and entrenched by the governing party. It beggars belief that after a series of decisions within the ANC, the cabinet made up of its members and chaired by its president, a parliament in which it had an overwhelming majority, it is now behaving as if it was painted into a corner by someone else.
What is true is that it was part of South Africa’s sense of moral identity to cast itself as the moral beacon of the world. It was also just a few years after the horrors of the 1994 Rwanda genocide which shocked the world. In fact, as recently as a few weeks ago, South Africa followed through on its war crimes obligations by arresting Rwandese fugitive Fulgence Kayishema in the Western Cape.
It is more than likely that Kayishema will be transferred to Arusha, Tanzania, to face trial in terms of the UNs’ International Criminal Tribunal for Rwanda, a mechanism created before the Rome Statute.
The ANC and its government should have thought about sovereignty when it refused to grant a visa to the Dalai Lama under pressure from the Chinese government. It’s too late now.
I have not heard a single prominent person complaining that Kayishema should not be arrested. The reason is that he is a mere security guard with no influence, so whether he is sent to Tanzania or made to await trial here for years is neither here nor there. He is a nobody.
Putin on the other hand is a head of state, and therefore to be protected from the inconvenience of being treated equally before the law. Unfortunately for the ANC government and its fellow travellers, there is no law in South Africa permitting such exceptions. This is not just my opinion but a judgment of the Supreme Court of Appeal when former Sudanese President Omar al-Bashir was assisted to leave South Africa by the government so he would not be arrested.
There are those who appear to believe that countries exerting pressure on South Africa to not allow Putin to come to the summit, or to arrest him when he arrives, are stepping on our sovereignty. This is a diversionary assertion. Their opinions matter far less than the rule of law in South Africa. We have a law with which the government is obliged to comply, nothing more and nothing less.
The ANC and its government should have thought about sovereignty when it refused to grant a visa to the Dalai Lama under pressure from the Chinese government. It’s too late now.
If the ANC government no longer wants to consistently apply our national laws then it must say so, and Kayishema should have a strong case to be allowed to stay and carry on with his job as a security guard. After all, he is entitled to the same treatment as everyone else.
More importantly, if the ANC no longer feels it has an obligation to implement the Rome Statute, then its government must initiate proceedings to withdraw. This involves its NEC member, Ronald Lamola in his capacity as the minister of justice and constitutional development, initiating a bill repealing the Rome Statute of the International Criminal Court Act.
In that event, the party would have to place arguments in the public domain explaining why they believe the country should no longer arrest and bring to justice individuals, however powerful they may be, to justice. I am also assuming that our country would henceforth no longer have an opinion on human rights abuses anywhere else.
We cannot have our cake and eat it.
We cannot voluntarily create laws and then disobey them. We cannot arrest some war crime suspects and then let others go. We cannot accuse some of war crimes and not others. We also cannot expect to be a global player but expect no geopolitical inconvenience.
Russia, not Putin, is a member of the Brics. It is also an economic co-operation vehicle, not a geopolitical alliance against anyone. Those who believe the latter live in dreamland and need to wake up fast.
South Africa does not need the inconvenience of arresting Vladimir Putin, so we should ask him to send someone else. If he is truly South Africa’s friend, as the ANC would have us believe, he should be most understanding and refuse to place his dear friends in a position where they have to break their own laws for his personal convenience.
Of course, he will do no such. After all, when he had powerful friends in Washington and elsewhere, he once described South Africa as “an important leader of small countries”.
Some friend.
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