On 16 March Zimbabweans will vote either “yes” or “no” in a referendum that may usher in the country’s new constitution and with it Zimbabwe’s much anticipated general election.
“Free and fair” and “elections” have hardly been synonymous in Zimbabwe with public processes in the past being marred by intimidation, violence and a lack of accountability and transparency. This has rendered some politically tainted wrongs non-justiciable in Zimbabwe and has seen South African courts in some circumstances weighing in – not as an alternative to the Zimbabwean justice system, but as a constitutional imperative.
Strictly speaking, the first port of call – before it was suspended – was the Southern Africa Development Community (SADC) Tribunal. A pyrrhic victory in a successful challenge to Zimbabwe’s land reform programme in 2003, however, was the catalyst in the slow demise of southern Africa’s court under the guise of a regionally sanctioned, and largely Zimbabwe driven, review.
Litigants have with greater frequency been turning to South Africa and five unique Zimbabwe related cases have found their way into South Africa’s courts.
Why? First, South Africa has an extraterritorial and human rights conscious legal framework that regulates and informs, albeit indirectly, South Africa’s interactions with other countries. Second, in terms of the principle of legality, these cases are simply asking the courts to ensure that South Africa complies with this framework – the fact that the effects of these cases are felt beyond our borders is of fundamental importance but is ultimately incidental.
Judicial intervention into terrain that impacts South Africa’s foreign policy and relations does, however, place judges in a precarious position. Foreign policy, the world over, is after all traditionally an area reserved for the executive arm of government, demanding deference from courts.
The Zimbabwean cases however demonstrate a conscious selectivity that appreciates limits of judicial intervention but also recognises the constitutional import of human-rights rooted limitations, constraining even the most coveted of executive powers. The trend appears to be that only certain types of cases – those that are preventative; responsive and informative in nature – are being heard. Judicial self-control has seen courts stepping in only when conduct on the part of South Africa has human rights implications and/or contravenes international law – each being components of the rule of law.
Preventative cases are those in which conduct on the part of South Africa has the potential to contribute to human rights violations in Zimbabwe. In 2008 South Africa was prevented from permitting the transfer of arms from China through South Africa to Zimbabwe. In this case the court was simply asked to ensure that the relevant authorities complied with South African arms legislation, which required formal approval that could only be given if there was certainty that the weapons in question would not be used to perpetrate human rights abuses. Similarly a temporary interdict was granted earlier this year under the same laws preventing the South African National Defence Force from delivering helicopters to Zimbabwe.
Responsive cases on the other hand seek to address international wrongs after their commission, and where redress in Zimbabwe is unlikely. A successful case in the High Court last year ruled that South Africa was obliged to investigate torture committed in the build-up to the 2008 elections. Torture is a crime against humanity under the Rome Statute of the International Criminal Court and South Africa’s international crime legislation obliges South Africa to investigate these crimes irrespective of where they are committed or by whom. This case did not involve a prosecution; it was a judicial review in which the High Court was asked to decide whether South Africa acted in accordance with its international obligations.
Last week the Constitutional Court also weighed in. It heard argument on the enforceability of a costs order judgment of the now defunct SADC Tribunal against Zimbabwe. The litigants attached Zimbabwean-owned property in Cape Town. Having lost in the High Court and the Supreme Court of Appeal, Zimbabwe took this matter all the way to South Africa’s top court. Although trivial in subject matter, this case will traverse the enforceability of judgments of regional courts, answering important questions on international law and South Africa’s obligations thereunder.
Cases of the informative variety shed light on situations that are a matter of public interest. Earlier this month the High Court ordered the Presidency to hand over a report on the 2008 Zimbabwe elections prepared by two South African judges to the Mail & Guardian newspaper. South Africa had declared the elections free and fair, but this report could suggest otherwise.
These cases all represent a judicial measurement of South Africa’s conduct against South African law and application of constitutional limitations. They elucidate principles that will be applicable to future cases as well as demonstrating the independence and accessibility of the judiciary. Although the cases will inevitably have political and diplomatic implications for the executive’s relations with Zimbabwe, separation of powers appears to be alive and well with courts attentive to the executive’s sphere of power and not seeking to over extend their own.
The courts willingness to entertain these cases highlights a distinctly South African approach, one which requires the exercise of all public power, regardless of its source, to be constitutionally compliant and consistent with the rule of law. South Africa has committed itself to being a nation conscious of human rights, both domestically and abroad, and this must be reflected even in those decisions that may impact its foreign policy and relations.
South Africa’s courts are therefore not dictating foreign policy or relationships but setting the parameters in which they occur.
South Africans can therefore take comfort in the fact that South Africa’s courts will not allow the country to be complicit in impunity in Zimbabwe or any other country.
These cases also show that conscientious citizen initiatives have a special contribution to make in exerting pressure on the wider enterprise of constitutionalism, especially within the realm of foreign policy. Lobbying, advocacy and litigation can be used to combat government’s reluctance to engage with its people on issues of foreign policy. By ensuring a more comprehensive observance of international and constitutional law in the setting of controversial foreign policy, courts have shown themselves to be a vital safeguard in this regard.
Recently, the deputy foreign affairs minister, Ebrahim Ebrahim, told the UN Human Rights Council that, “South Africa’s foreign policy regards human rights as inherent to all human beings”. Perhaps this may mean something after all. DM
Alan Wallis is the International Justice Project lawyer at the Southern Africa Litigation Centre, Johannesburg