Quo Vadis our Constitution?


The events which unfolded this weekend at the African Union Summit in Sandton could be described as farcical if it were not for the fact that they mask two tragic events.

First, the victims of mass murder were all but forgotten. And secondly, the outcome – government’s complicity in assisting an international fugitive to escape justice – brings into sharp relief just how much disregard, if not contempt, is held by the Executive for the Rule of Law.

The HSF is not unaware of the dilemma which the government faced. Dilemmas, by their very nature, do not allow for easy or quick decisions. But the speed with which this predicament was managed, indicates that government has little regard for its constitutional mandate, and will readily sacrifice its obligations when political and diplomatic niceties are at stake.

This is tragic.

That the government granted blanket immunity to all delegates attending the Summit is itself an indication of its awareness that fugitives from justice would be attending. To play fast and loose with our Constitution and the Rule of Law further compounds this tragedy. South Africa is not only a signatory to the Rome Statute but it was one of the voices that advocated it creation. In 2002 South Africa incorporated the Rome Statute into domestic law[1]. Our Executive is well aware of its obligations under that Act as it signed off on the Act in 2002.

On Sunday 14 June 2015, the Urgent Court of the Gauteng Provincial Division granted an order in favour of the Southern African Litigation Centre (SALC). The order stated that subject to the finding of the Full Bench, al-Bashir was to be detained in South Africa. On Monday 15 June 2015 the Full Bench, comprising the Judge President and two other senior judges, ruled that in accordance with the Constitution and South Africa’s international obligations, the Executive was to detain al-Bashir pending a request for his relocation to the International Criminal Court in the Hague.

What trumps what? 

Does the Constitution and the constitutional obligations which flow from it, trump the Executive’s decision to allow an international fugitive to go shopping in Sandton? [2] 

And what of the Rule of Law? 

Many dignitaries at the Summit hailed the importance of the Rule of Law. Most notable amongst these was the Chairman of the African Union, Robert Mugabe, who without irony hailed its importance.

The HSF commends SALC for its brave intervention and congratulates its lawyers for their sterling work. We applaud the Courts in their steadfast defence of the Constitution and the Rule of Law. Unfortunately disregard for the Rule of Law is fast, and dangerously, becoming a default position when the Executive is faced with difficult choices. [3]

This is tragic. 

[1] Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
[2] In an effort to emphasise that al-Bashir’s absence from the Summit in no way meant he had fled, Mokhari SC noted that al-Bashir could merely be doing other things like shopping.
[3] In case after case after case that the HSF has brought against the Minister of Police in connection with the independence of the Hawks, the Minister of Police has blindly sailed on unlawfully by ignoring the judgments of courts.