Postscript to my article on the Al Bashir Judgment

By | 12th June 2016

The original post can be read here: The Bashir Judgment raises the red flag for the Rule of Law and the Judiciary

Since the finalisation of this note, two significant developments have ensued. First, President Zuma took the Chief Justice up on his invitation to meet and, in an unprecedented move, on 27 August 2015 a seven-hour meeting was held in which senior members of the judiciary and the executive agreed on ten ‘key points’ aimed at ensuring mutual respect in their dealings. In essence, they agreed on the importance of adherence to our constitutional prescripts, including the separation of powers and the sacrosanct place of the judiciary — which ought to be shielded from gratuitous and unconstructive public criticism — within our tripartite system of government. In other words, consensus was reached that constitutional conformity is key. This is not a ground-breaking assertion, but recent events suggest that it remains necessary to state the obvious. What is of course ground-breaking is the actual holding of the meeting, which the parties themselves described as ‘historic’ and ‘epoch making’. Given our commitment to the separation of powers, it can be viewed as both a good and a bad thing. On the one hand, Chief Justice Mogoeng’s intervention has been described as a ‘courageous act’ aimed at protecting the judiciary’s vital role in our democracy.

On the other hand, this meeting epitomises a kind of dialogue between these arms of state that goes well beyond the structured ‘constitutional dialogue’ permitted by our model of separation of powers. As former Constitutional Court Justice Zak Yacoob has remarked in a speech addressing the ANC’s attempts to misconstrue the nature of this ‘conversation’: The conversation between the courts on the one hand and the legislature and the executive on the other is of a different kind. It is not about branches of government talking to each other privately and secretly to obtain a common understanding of the needs of our country. The executive and the legislature on the one hand and the judiciary on the other should indeed talk to each other and do indeed talk to each other. But they do so in a specialised structured way.’ The August 2015 meeting thus arguably sets a dangerous precedent pursuant to which further such conversations may be had, but for less noble ends. This kind of dialogue may therefore in fact compromise judicial independence—even if merely indirectly so—especially given the repeated questioning of our courts by the executive.

The second significant development subsequent to the finalisation of this note is that on 15 March 2016, the Supreme Court of Appeal delivered its judgment in the Bashir matter.The SCA found against the government, notwithstanding the latter having ‘relegated to a backseat’ the ‘misconceived’ argument that the Ministerial Notice, coupled with the host agreement, provided President Bashir with immunity from arrest On this score, the court found that, ‘the High Court was accordingly correct in the conclusion it reached on the arguments placed before it’ . The government placed a ‘different argument’ before the SCA which was essentially ‘based upon what were said to be the provisions of customary international law and the provisions of s 4(1)(a) of . . . [the Immunities Act]’. This ‘change of tack’ proved to be unfruitful for government. In essence — and notwithstanding the inconclusive travail into the murky question of ‘an international crimes exception to the principle of head of state immunity’ in customary international law—Wallis JA engaged the applicable rules of statutory interpretation to hold that although the Immunities Act continues to govern the question of head of state immunity, the specific terms of the subsequently enacted Implementation Act ‘exclude such immunity in relation to international crimes and the obligations of South Africa to the ICC’ ). This conclusion was fortified by a human-rights-centred approach to the issue — an approach which, although Wallis JA noted may indicate a departure from customary international law, is a‘commendable’ departure in a ‘progressive direction’. Our courts are not going to countenance the executive aiding and abetting war criminals. The question remains whether the government has meaningfully been brought to book. Although the SCA fervently condemned government for its ‘disgraceful conduct’ in isleading the court with false assurances and facilitating President Bashir’s departure in breach of a court order, one wonders whether this will in reality have a chilling effect on government’s conduct or whether it will simply be water under the proverbial bridge. The high court concluded its judgment with an invitation to the NDPP to consider the appropriateness of criminal charges against the government. The SCA, perhaps rather idealistically, noted that this is a ‘matter no doubt being investigated by the appropriate authorities’ (para 7). But we have yet to see any evidence of such an investigation and, given the current political climate, it is doubtful that one will be conducted. It would therefore seem that we must continue to ‘clap for the rule of law’ for, to repeat Stewart’s poignant words, ‘if we stop believing in it, the ideals that it represents will cease to exist and the practical effects would be disastrous’”.

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