Courting Disaster?

The decision of the ruling African National Congress to withdraw South Africa from membership of the International Criminal Court has drawn fierce criticism from many within the country—from opposition parties in Parliament, from civil society groups and from the human rights community. This is a sequel to a political standoff that occurred in June this year, when the government allowed Sudan’s president, Omar Al-Bashir (wanted by the I.C.C. for human rights violations and crimes against humanity), to attend an African Union meeting in the country—and then slip out of the country even after a South African court ruled that he should be arrested.

The rationale for defenders of the Bashir action was summed up as a mixture of pan-Africanist solidarity and skepticism about the I.C.C. itself. The former is an assertion—filled with anti-colonial rhetoric—that the I.C.C. seems to inordinately target African state leaders, almost never Western war criminals. The latter raises the perhaps more subtle and arguable claim that since many powerful countries like the United States, Russia and China are not signatories to the I.C.C. agreement, the court itself is of questionable global effectiveness.

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Significantly, neither of these issues seems to be considered by South African critics of the A.N.C.’s decision. Their concerns are rooted in pressing domestic issues, most notably how the ruling party sees South Africa’s own rule of law.

For these critics Bashir’s unmolested departure from South Africa represents yet another case where the ruling party flouts the rule of law that it, as the governing party, is supposed to uphold. The A.N.C. has done this on a number of occasions. It has refused to comply with instructions from the Office of Public Protector regarding state funding for improvements to President Jacob Zuma’s private residence. More recently the government did not instruct the state-administered South African Broadcasting Corporation to suspend its director Hlaudi Motsoaneng, pending investigation into alleged corruption and deceit regarding his appointment. (Mr. Motsoaneng is a party loyalist who enjoys the favor of Mr. Zuma.)

On another level, critics observe that this latest incident is a mirror of how the A.N.C. regards human rights and the Constitution—that is, selectively, according to what suits the party’s needs. They see it as a disturbing example of how sectoral political interests are undermining the long-struggled-for culture of human rights and due process that was the hallmark of the new democratic state inaugurated in 1994 and bolstered by a Constitution and bill of rights that was acclaimed as one of the best in the world, a touchstone for democracy.

When it was created, South Africa’s Constitution was intended to prevent the subversion of law and the violation of human rights that had been part of the old regime. Many who wrote it had been lawyers under apartheid who had used an imperfect legal system to carve out spaces of freedom to challenge the old state. The use of courts to challenge imprisonment without trial or faulty state declarations of martial law served as temporary “holding actions against unlimited state power.” But the state would change laws to suit its interests.

Seeing that the past problem was too much power in the hands of the executive and legislature, the drafters of the South African Constitution made it the supreme authority, with laws and procedures subject to judicial review and changeable only by parliamentary majorities. No one imagined that two decades into a post-apartheid democracy the law would simply be ignored.

At this time, the A.N.C.’s decision to withdraw from the I.C.C. has no legal status. It is a resolution of a party conference, an expression of a policy that the A.N.C. hopes to make law. One possibility is that the A.N.C. leadership may be persuaded to back away from the resolution for political reasons. Any withdrawal from the I.C.C. might, considering the circumstances that gave rise to it, look like South Africa endorsing rogue regimes and dictators.

If the policy is pursued, it it will have to go before a Parliament in which the A.N.C. holds a majority. Even if it passes there, it could in theory be challenged in the Constitutional Court. One may see in this an echo of the “holding action” against state power that marked human rights legal activism in the apartheid era.

Whatever the case, critics of the A.N.C. are right to be worried about this latest move.

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