South Africa

ZUMA’S RESCISSION APPLICATION

International covenant ‘does not bind’ South African courts — State Capture Commission

From left: Deputy Chief Justice Raymond Zondo. (Photo: Gallo Images / Veli Nhlapo) | Former president Jacob Zuma. (Photo: Gallo Images / Netwerk24 / Felix Dlangamandla)

The commission has rubbished Zuma’s legal team’s assertion that the international covenant on civil and political rights would undo his imprisonment.

The Commission of Inquiry into State Capture has told the Constitutional Court that the international covenant on civil and political rights “has no force of law in South Africa” and “does not directly bind South Africa when acting domestically.”

The court is considering a rescission application made by former president Jacob Zuma who is serving a 15-month jail term. Zuma’s lawyers have argued that the court should consider articles of the United Nations International Covenant on Civil and Political Rights (ICCPR).

In particular, the court is considering the impact of Articles 9 and 14.

Article 9 deals with the right to liberty and security of a person and unlawful arrest, whereas Article 14 says that everyone convicted of a crime shall have the right to have the sentence and conviction reviewed by a higher tribunal according to law.

The commission submitted its take on the role of the ICCPR, and has rubbished Zuma’s legal team’s ascension that the international covenant would undo his imprisonment.

“The ICCPR is intended to prevent detentions which do not comply with the procedures laid down by the law. This is inapplicable here. A detention for contempt of court is part of our common law. The procedures followed in a detention for contempt of court are well known — they have received the imprimatur of constitutionality from this court and the Supreme Court of Appeal. The applicant knew about the likely imprisonment for contempt of court. He was invited several times to participate in those procedures. He refused. There is no breach of Article 9(1) of the ICCPR,” the commission has told the court.

The commission’s lawyers also criticise the Zuma team for suggesting that the court made an “error” in its initial judgment that saw Zuma imprisoned.

“There is no judgment, of which we are aware, where a superior court ‘reconsiders’ its judgment because it believes the first one to be wrong. There is no case in which the minority judgment is simply replaced in the place of the majority where both views were debated and considered. It must be recalled that the applicant brought this application alleging an error. Now that he has failed to demonstrate the errors, he is apparently grasping at every possible straw, including the untenable reference to international law,” the commission has said.

The commission added that Zuma’s case is about his disagreement with the initial decision, but this is not sufficient grounds for rescission of the previous judgment. The commission has also criticised the Zuma team’s reliance on international law which is not binding.

“The ICCPR has no force of law in South Africa. It does not directly bind South Africa when acting domestically. It is relevant in interpreting the Bill of Rights, but it creates no self-standing rights and obligations, domestically. No one can approach a South African court alleging a breach of the ICCPR. The ICCPR is not an instrument to interpret our domestic laws,” the commission said.

It argued that such a covenant “has a direct binding effect” when South Africa “acts internationally”. The commission added that while South Africa has ratified the covenant, it has not been incorporated into domestic law. 

“This means that the convention binds the republic at an international level but it does not create domestic rights and obligations,” the commission said. 

The Helen Suzman Foundation and Council for the Advancement of the Constitution  (Casac) have taken a similar view on the role of the UN covenant and said it does not apply in this case. 

Meanwhile, Democracy in Action has taken a similar view to Zuma, saying the court should have considered this covenant before deciding to jail Zuma. DM 

Dianne Hawker is a news editor at Newzroom Afrika and has been working as a legal journalist for 15 years.

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  • I’m baffled by this statement in another article by Democracy in Action:

    “It is testimony to the thoroughgoing processes of this Court that it has now called for submissions on implications of customary international law on this unprecedented detention of a former Head of State by the apex Court without being afforded fair trial rights. For that, this Court deserves commendation, not condemnation,”

    As per my understanding – via ad nauseum articles on the topic at the time – Zuma was thoroughly apprised of the situation and given more than sufficient time to simply comply with the tenets of a commission he created. And all he needed to do was attend the commission and tell the truth.

    Democracy in Action: please could you explain your position on the topic here as in the absence of this, the only rational conclusion I can come to is that, like our country, your organisation has been captured by Zuma and his cronies.

  • The only error was made by Zuma with the sanction and blessing of his lawyers. They allowed him to show contempt of the court again by not handing himself over within the five days. It was a order of the court. This time it is infinitely worse. The potential implications for the rule of law and constitutional democracy are infinitely worse. The constitutional court would have nowhere to turn in this instance. It was a full frontal attack on the rule of law and the constitutional democracy. They cannot sanction him again if he ignored the first sanction… there is no more road… the ANC need to understand what their choices have created, if they can actually comprehend it… anyhow the precedent was set the first time round. Lower courts are all now bound and surely anyone can now lay a charge. The precedent for contempt of the constitutional court is there. There is no need for a court case, a court case is for determining your innocents or guilt… it was in broad daylight for even a blind person to see. He is guilty a court judge just has to pass judgment by default and then sentence him. A default for a instance of infinitely less consequential damage to the rule of law is 15 months. Precedent is there, this time if he appeals the sentence can be upped to 2000 years or some something a bit more applicable. If the ANC integrity committee had any integrity they would lay the charge, surely due to the severity of the consequences, the collapse of the rule of law and constitutional democracy any court will have jurisdiction. If the integrity committee has no moral compass then the ANC in Zumas province must lay the charge, failing that the SG of the ANC, failing that the president… why do they wait for someone outside their organization to do it that is inviting more anarchy something someone with integrity should try avoid at all costs, they do not care about SOUTH AFRICA and have no integrity. That is the only conclusion one can draw. The oath of office means nothing to them it only gives them access to a salary that they fundamentally don’t deserve.

    • “…. they do not care about SOUTH AFRICA and have no integrity. That is the only conclusion one can draw. The oath of office means nothing to them it only gives them access to a salary that they fundamentally don’t deserve.” – now that’s the anc for you, summed up in three simple sentences.

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