Opinionista Lebo Keswa 29 June 2015

The ANC’s brazen undermining of the rule of law

The ANC’s threat to withdraw from the ICC sounds, frankly, hollow. It’s clearly meant as a diversion from their flagrant disregard for the law – the same disregard they continually demonstrate. The big question is, why now?

It’s not fair to commit oneself to international obligations and then, once you have failed to live up to the prestige of being a signatory, try to pull out. Who exactly is the ANC trying to fool?

The reality is that the latest fiasco – that of Omar al-Bashir – is perfectly in line with the usual legal missteps of the Jacob Zuma administration. One would assume that a liberation movement as powerful as the ANC would have all the legal muscle necessary to run one of Africa’s most sophisticated economies. But alas, it is now becoming an embarrassment, given what one assumes is the poor legal advice the president is constantly given by those who surround him. It would be better if we were able to argue that this were a once-off mishap, but recall the following incidents:

  • The poor advice on Menzi Simelane’s appointment as NDPP, where the SCA judgement declared that such an appointment was invalid; that Simelane was unfit to hold such an office;

  • The poor advice given on the renewal of the Chief Justice’s term of office, where once again the court ruled that this was irregular and embarrassed both the state and the judiciary;

  • The poor advice given on how to handle the appointment of the NDPP, where the appointment of a person not security cleared must have been the worst and lowest moment in our country’s practice of due diligence;

  • The poor advice given on how to deal with the Public Protector’s Secure in Comfort report;

  • The advice given on how to deal with the eviction of the EFF from Parliament, where some pseudo-legal advisor presumably told the ANC it was perfectly all right to evict the party by hiding the identity of the security officers, and block the signal “for security reasons” to boot;

  • The advice to punish the EFF by withholding their salaries, where Parliament had to pay their salaries with its tail between its legs;

  • The poor advice regarding the Zuma Spy Tapes, which resulted in an embarrassing scenario where the tapes are likely to result in the reinstatement of charges against a sitting president – clearly a ticking time bomb which also shows us how little regard the president has for our courts and the law, spending the taxpayer’s money playing hide and seek with these tapes way after the courts pronounced that they must be handed over.

This litany of mishaps would be laughable if it were not so tragic for our young democracy. Half of these incidents read like a horror story of legal incompetence, or legal advice being ignored for the sake of political expediency. It saddens some of us to hear that the courts continually have to tell the ruling party to do the right thing. Our judiciary, in many ways, has proved its independence, and yet when we lose cases owing to either inferior legal advice or blatant disregard for the Constitution, the next nearest escape route is to play the victim. Once again, Gwede Mantashe – he who threatened to move Parliament to Gauteng if police refused to take action on truant MPs – now complains that the Gauteng and Western Cape High Courts have an agenda.

This is the worst form of intervention that the ANC, as leader of our society, can make. Instead of getting our act together to respect the Constitution, we are now finding excuses to intimidate the judiciary. Does this mean these courts must next time think twice before they rule against the ANC government? Should they not be allowed to act without fear or favour? Is justice suddenly mathematical – how many cases must the government lose or win in order for the courts not to be labelled ‘counter-revolutionary’?

A blatant disrespect for a court order can only follow in the footsteps of this poor leadership displayed by the ANC. The utterance of DIRCO’s Ayanda Ntsaluba, upon the ICC warrant being issued, was the most progressive line taken at the time. It was sad to hear the opposition quoting ANC ministers’ words during the adoption of the Rome Statute in 2002 – the ANC being very proud to have made the world smaller for international criminals. Did the ANC really need the DA to quote these things back to them?

So let’s revisit this misguided threat to retreat from the ICC. Is the ANC so morally bereft that they have not worked out how to hold al-Bashir and other dictators on the continent accountable for the deaths of so many fellow Africans? I don’t hear any word from the ANC on how to activate mechanisms that can hold African leaders accountable. If they hate the ICC so suddenly and so much, why are they not championing an alternative mechanism for African leaders? Do they perhaps need Floyd Shivambu to lecture them about this? It is deeply ironic that the same government that has refused the Dalai Lama entry into the country for spurious reasons has allowed someone accused of murdering his own country free access across our borders.

A great deal has been said about the diplomatic fall-out that would ensue following the arrest of a head of state. Granted, but who was sleeping at the controls to allow him entry into the country in the first place? Who is standing in place of the wisdom of Ayanda Ntsaluba? Who ignored the reminders of the ICC, issued only a few weeks ago, about South Africa’s obligations? This is, quite simply, a total failure of political leadership. But perhaps we should not be surprised, given that South Africa has thrown its weight in with the West before leading to the killing of Gaddafi.

Our foreign policy is fast becoming an embarrassment and our founding fathers, who led us from being the skunk of the world, must be turning in their graves.

The ANC government has shown us how we must relate to the courts and the justice system. If we don’t take heed, we have only ourselves to blame. It all started going downhill when it was apparent that the dropping of charges against our president was political and social engineering, only to be followed by the destruction of the Scorpions, with the Hawks to follow.

The systematic erosion of our institutions have reached a new high, with the courts as the next victim of rampant lawlessness. There is no justification to play fast and loose with the law. In all countries that have gone down the drain, the undermining of the rule of law was a sure sign of their journey to becoming failed states. This is how the international community will view us – a place where you can take a chance and undermine the law, especially if you are powerful. One hopes that there will be legal consequences for this brazen action – that is the only way that South Africa can redeem itself. DM

* Keswa is a businesswoman. She writes in her personal capacity. Twitter: @lebokeswa

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