Opinionista Onkgopotse JJ Tabane 7 November 2016

Dear Minister Masutha, Let’s Talk Frankly about the ICC pull-out

You know very well that bypassing Parliament and rushing to the UN is an attempt to contravene the law that remains in place as we speak. It’s that simple.

Dear Minister Michael Masutha,

Your interesting platitudes about the rogue ICC pull-out-stunt in Parliament recently bears reference. I know it’s tough these days to be honest but it behoves you as a minister or justice to try harder than the rest of your friends in Cabinet to indeed be honest

You know very well that by bypassing Parliament and rushing to the UN is an attempt to contravene the law that remains in place as we speak. It’s that simple. I am sure that even though you last studied the “interpretation of statutes” as part of your BJuris degree at our common alma mater, Turfloop, more than two decades ago one can expect you to still remember and grasp some elementary legal principles and to be expected to apply the same in this latest politico-legal fiasco of the current administration.

In your hurry to save face among your African peers, the executive has no business undermining Parliament. Your reasoning that it was “no secret” that you intended to break the law is no excuse to go ahead to break such a law with impunity.

Under your watch and that of your predecessor the South African government has received the worst legal advice ever, as demonstrated by numerous cases you lose in our courts day in and day out. You are carrying on the trend by advising the government that despite a domesticated piece of legislation being properly repealed it is okay to go outside the country and contradict such a law before Parliament repeals the same.

In other words, it’s a question of the tail wagging the dog in this instance – Parliament is expected to simply rubber-stamp your executive action carried out in contravention of an existing piece of legislation. Maybe this kind of legal logic was discussed on a day that you bunked class back in Sovenga? 

There are no prizes for guessing that you are attempting to overtake the courts that are waiting for you to come and explain your criminal action of whisking the criminal warlord out of the country in clear defiance of our law – something that has become pretty much habitual in our country these days. Frankly, this must be the most pathetic advice you have given to the South African government since you assumed office.

Slogans of “African solidarity” are fine but they don’t ever translate into anything meaningful. Simply because you suppose that some African dictator will clap hands because you are seen to be giving the middle finger to the west is not enough to get away with undermining the supreme law of our land.

Someone must nudge you into looking at your almanac carefully. It’s way past 1994 when the law didn’t matter and the Nationalist ruling party could do pretty much what it pleased in spite of its tricameral Parliament.

Someone must underline or recite for you the part of the Constitution that can help you understand that something pronounced at the NGC of the ANC actually has no legal standing in jurisprudence until It is translated into law. That is why when the ANC took a resolution to brazenly kill the Scorpions, back in 2007, it had to at least pretend to be consulting Parliament before arrogantly going forth to implement something that eventually was declared unconstitutional by our courts. Public hearings were held before the law governing the Scorpions was repealed.

One would have thought that even though you may have been some political nobody at the time you would have been taking some notes about how to go about governing. But alas you have learnt nothing from that experience. You have learnt nothing either from all the reprimands of our judiciary over the years pointing you to the moral compass that seems to have disappeared.

When all is said and done it’s sad that you of all people truly believe that diplomatic immunity is more important than justice for families of those that were wantonly murdered by the likes of Omar al-Bashir.

Your ilk is what makes the whites laugh at a black government. We read the same law and you go and do exactly the opposite of what is provided in that law. The Constitution clearly indicates that your action on the international scale is illegal. As its primary custodian you should be the first one to encourage the culture of respect for that supreme law and not engage in cowboy tactics where legal matters are concerned.

You are, however, the culprit Number 1. How do you even explain that under your watch a war criminal like al-Bashir was even invited in the first place as a result of poor reading of the law about “indemnity of a head of state”?

If you caused the government to abide by the law you would not have had the embarrassment of having to whisk that war criminal out of the country by back door and suffer the indignity of having to lie openly to a court of law about not knowing his whereabouts.

You would have been responsible for whatever international incident would have ensued from the arrest of a head of state on our soil, a chap who should not have been invited in the first place. This is the sensible thing that President Mbeki’s administration did when faced with a possible visit by this rogue. And by the way, you and President Zuma have got nothing on Mbeki where African issues are concerned so I am clear that such a position did not suddenly mean South Africa was less acclimatised to its African obligations.

Coming to the substance of the argument about choosing between African issues and ICC, this must be most pedestrian argument ever advanced by a man of the law, as you are supposed to be.

Your professors at Turfloop can’t be happy with what you have become. Although the slogan about African solutions for African problems may sound revolutionary and all that, it’s been rendered meaningless by the conduct of the likes of you.

You have been in office for a long time now and you have not assisted South Africa to champion the operation of the so-called African Court of Justice. In other words, while you are keen to get rid of African obligations to the international community via the ICC and Rome Statute you are not as excited at ensuring that an African mechanism of accountability is in place. You probably have not written a single paragraph to the AU pressing them to implement this noble African solution.

I of course am happy to be proved wrong with evidence. The cold fact is that only 50% of African countries have signed up to any mechanism to replace the ICC. Deserting the ICC at this stage hurriedly, when there is nothing to stand in its steadn is a clear act of turning our backs on 300,000 murdered African victims of the likes of al-Bashir.

Finally, let’s not kid ourselves about relying on spurious arguments about the majority of those that are being prosecuted by the ICC being African. Since when is the west a standard-bearer to the point where their wrongs determine our attitude to rights? Are you going to wilfully ignore the fact that African cases before the ICC were placed there by the citizens of the countries concerned after being failed by their domestic legal systems? Or has that ceased to matter on the altar of fake solidarity among African despots? Come on, dear Michael!

I hope and pray for the sake of the dignity of those whose families are still mourning in Sudan that your theatrics are defeated in the highest court of this land – that may help you to return to some of those scribbled notes from the “interpretation of statutes” course material back at Turfloop as you find your moral and legal compass.

I wish I had time to discuss what kind of legal advice you have been dishing to the president and Bra Des lately, but time is our enemy. I am not done with you though… DM


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