southern justice

South Africa’s International Criminal Court conundrum

By Rejoice Ngwenya

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Posted on June 19, 2023 11:07

 © File photo of Prosecutor Karim Khan preparing for a trial at the International Criminal Court in The Hague.
File photo of Prosecutor Karim Khan preparing for a trial at the International Criminal Court in The Hague.

Despite well-documented cases of extreme disparities in income and wealth, not to mention xenophobia, South Africa bears the burden of being Southern Africa’s economic big brother. This tag comes with less rewards than penalties.

There is no statistical consensus, but general evidence shows no less than five million immigrants reside in that country; though most are from the neighouring countries others originate from as far as Nigeria, Ethiopia and Somalia. Unofficial sources say three million of these are Zimbabwean fugitives from their own country’s economic turbulence.

If most alien Africans in that country are victims of military, social, economic and political ‘conflict’, it is easy to appreciate why South Africa ratified the values of the International Criminal Court (ICC).

Below the baseline

The crude logic is that criminals tend to use countries with generous immigration policies as safe havens. Thus, the host country is tempted to have an affinity with most international protocols that encourage extradition and cross-border prosecution.

We recently saw ‘Facebook rapist’ fugitive Thabo Bester and his medical doctor partner Nandipha Maguduma arraigned in Tanzania and subsequently deported to their home country South Africa. Yet observers quite rightly argue that when it comes to fulfilling its obligations as a member of the ICC, South Africa performs below the baseline of global expectations.

The country’s ‘international justice culture’ has now been tested twice in just under a decade. Most countries in the region lag far behind South Africa’s economic performance, but there is more to learn and benefit from each other than just bread-and-butter issues of trade.

South Africa’s liberal constitution and more so, its application, is something the rest of Africans adore. However, when it comes to matters of justice and fairness, most foreigners in the country are sworn to resent its bully tactics.

Many aliens have bemoaned foreign minister Naledi Pandor’s lethargic ambivalence to xenophobia, more so in matters relating to ICC demands. It seems extremist group Dudula has been ‘permitted’ to exercise its rampant and radical brand of ‘alien cleansing’ while local security and police ministries watch with bemused complicity.

Africa, the world’s judicial lab

Thus, it surprised few that when news broke out that Russian President Vladimir Putin was angling to attend the 22-24 August BRICS summit in South Africa, Pandor was the first to offer blanket delegate immunity.

Putin is not the first to tempt the ICC snare during an international sojourn in South Africa. In 2020, deposed Sudan strongman Omar al-Bashir showed up for an African Union summit in South Africa.

Human rights groups and opposition parties approached local courts to compel his arrest on account of 300,000 deaths in Darfur in 2003, yet the South African government allowed his escape before the court’s ‘arrest Bashir’ verdict.

In its own way, it exposed the ICC’s implementation weakness. The court has always been accused of treating Africa as its judiciary laboratory, having so far only managed to prosecute African ‘offenders’.

Both Charles Taylor of Liberia and Congolese Thomas Lubanga have been nabbed for crimes against humanity, while then-Kenya president Uhuru Kenyatta’s indictment on post-election violence against his citizens in 2007 and 2008 was later reversed.

Look inward

There are several cases in the region that required ICC attention. Other than Zimbabwe’s perennial electoral murders and diurnal human rights abuses which ironically are causative factors of South Africa’s immigration headaches, Mozambican kingpin Esmael Malude Ramos Nangy, responsible for a myriad of kidnappings, should have been indicted.

Political observers argue that defiant Eswatini monarch Makhosetive Mswati is a genuine candidate for ICC indictment due to his approach to political dissent.

In Zimbabwe, thousands of political activists have lost their lives and millions of others exiled in the past 40 years that Zanu-PF has been in power. Again, South Africa is at the front row of diplomatic leniency when it can evoke retributive peer review.

Criminal justice and conflict resolution London School of Economics academic Mark Kerten wrote that the ICC’s indictment is no longer able to constrain the movement of culprits, especially to and from South Africa.

ICC Justice

Now we know that Putin, who has been invited with other heads of state of Brazil, Russia, India, and China to South Africa for the 22-24 August BRICS Summit will never face ICC justice.

The spectre of shrinking democratic space in Southern Africa comes with the reality of new forms of violations. For Zimbabweans and Swatis – and to a lesser extent Malawians, Mozambiquans and Basotho – democracy is fragile and there will always be temptation for ruling parties to be heavy-handed.

Moreover, South Africa’s position as an economic giant should give that country an aura of regional responsibility towards its neighbours. The shocking irony of it all is that while the Russo-Ukraine war rages thousands of kilometres away, Southern Africa has suffered from food insecurity shockwaves and unstable commodity prices.

This on its own should have prompted South Africa to at least consider Vladimir Putin as persona non grata. But then again global business and political interests tend to take precedence over human rights violations in Southern Africa.

We have seen this time and time again on matters involving Chinese investments. Cyril Ramaphosa is, on one hand, trumpeting the African peace mission to Moscow and Kiev, but on the other, discrediting the very essence of international justice. Thus, it is not surprising that he and Pandor are presenting an image of ‘organised confusion’ in dealing with their Russian BRICS partner who is being pursued by ICC for crimes against humanity.

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