Some Notes on Sovereignty
Background
As the HSF has already written, Fick is hugely important for South Africa and the SADC region, as the Constitutional Court’s (CC) findings create an important precedent about the rule of law [1]. The judgment allowed the farmers to recover costs against the Government of Zimbabwe by executing property it owned in South Africa. This was done in satisfaction of an order made against it by the, now defunct, SADC tribunal. The effect of the CC’s judgment is that even though the Tribunal may no longer exist, its findings are still binding on signatories to the instrument through which the Tribunal was established, namely the SADC Treaty.
Given the South African government’s role as mediator in Zimbabwe, one reaction to this judgment has been that it has put us in an invidious political situation. The argument advanced has been that in ruling against the sovereign state of Zimbabwe, the CC has complicated our ability to mediate effectively because the Mugabe regime may see this as an underhanded way of supporting one side over the other. As the argument goes, a sovereign Zimbabwe should have been left well alone [2].
There may be some merit in this argument. However, in a conflict between the rule of law and sovereignty, the HSF is of the opinion that the rule of law, at least in this case, must trump any notion of sovereignty.
Sovereignty
Sovereignty, as popularly understood, is grounded in Albert Dicey’s 19th century construction of the rule of law. Dicey believed that citizens enjoyed their freedoms only when the state was sovereign (master of its own fate), the courts were free and fair and that the law was supreme.
Any argument that the Zimbabwen regime can be equated with Zimbabwean sovereignty is false. What then of this regime?
While the government may be formally legitimate (i.e. elected), the high levels of voter-intimidation and power-grabbing by Mugabe, and his allies deny it substantive legitimacy.
This conclusion is inescapable when you consider that its judiciary is far from independent, the rule of law is absent, and the Mugabe government conducts itself with little or no regard for democratic principles. Its economy is in ruins with the state virtually wholly dependent on the economic good graces of foreign powers. The courts are increasingly stacked with political appointees who see fit to abuse the criminal justice system for the benefit of Mugabe and his allies.
Even on the formal measure of democratic elections, Zimbabwe is left wanting. The 2008 election was marred by violence in which Mugabe and his regime hijacked power and secured a negotiated settlement which saw them hold onto power despite being rejected by the voters.
Zimbabwe and the Tribunal
Despite this, Zimbabwe jettisoned its right to unqualified sovereignty in order to enjoy the benefits it reaped, and continues to reap, as a member of SADC. As the CC found, it would be an abnormality that Zimbabwe could defend itself before the Tribunal (a SADC institution) and, upon having an adverse ruling made against it, deny that the forum had any right to make a ruling against it in the first place.
This is especially the case in today’s interconnected, globalized world where policy decisions in one country can have major consequences in another. Sovereignty is weakened when you consider that most states have some self-interest in what goes on in others where money, security or politics is at stake.
But national self-interest is only one argument. Reams of literature are dedicated to discussing the moral responsibility that nation states may have to their citizens. The responsibility to protect doctrine is one such example. This doctrine suggests that the international community has a primary place in ensuring that individual states protect their domestic populations from genocide, war crimes, crimes against humanity and ethnic cleansing; and that where they fail to do so, the international community is entitled to intervene using coercive measures, military intervention being the last resort.
Whilst it is not suggested that Zimbabwe’s treatment of (mainly white) farmers falls neatly into any of the above categories, the point illustrated is that unqualified sovereignty, where a state is free from interference despite how heinous its policies may be, is long gone.
South Africa’s Experience
Regrettably, this view of unqualified sovereignty reminds one of the Apartheid-era justifications of the government’s policies being beyond reproach from the outside world. As the well-rehearsed argument went, South Africa was an independent, sovereign country and we did not need to answer to anyone for whatever policies we implemented at home. The irony then is, that in forgetting how our own plight for a free and fair South Africa was aided by others’ willingness to forgo this notion of sovereignty in favour of solidarity, we deny Zimbabweans the same kind of justice that we so desperately sought.
This observation can be made without even engaging in a merits-analysis on Zimbabwe’s land reform policy. One’s concern is not about land reform per se, but about the rule of law and a nation being accountable to its people or, where that is not possible, the international community.
That is the effect of this ruling: Zimbabwe is bound by its obligations under the Treaty and so are we.
Our agreement is not only a legally binding obligation to uphold our commitment to the rule of law, it is also a source of moral authority. Our ability to demand that Zimbabwe plays by the rules is severely undermined when we do not have a steadfast commitment to those same rules. If we were to conveniently overlook Zimbabwe’s malfeasance and allowed it to hide behind sovereignty to do so, our ability to act as an intermediary in Zimbabwe would be hypocritical, to say the least.
Unfortunately, Zimbabwe’s determination to not be held accountable has reached new heights. It has granted the properties in question diplomatic immunity under the Vienna Convention which means they cannot be touched.
Land Reform
Quoting from Glenister, in which the Helen Suzman Foundation acted as an amicus, the Chief Justice stated in Fick that:
“South Africa’s obligation to develop the common law as a measure necessary to execute the Tribunal’s decision “is a duty this country itself undertook when it acceded to these international agreements. And it is an obligation that became binding on the Republic, in the international sphere, when the National Assembly and the NCOP by resolution adopted them”. [3]
Equating this judgment with casting aside the justified need for land reform in South Africa is a mistake. In the first instance, it is a giant straw-man. Nowhere does the CC express an opinion on land reform.
This quote from the Chief Justice is illuminating:
“When the farmers’ rights to property, their human rights in general and the right of access to courts in particular were violated, Zimbabwe was, in terms of article 6(6) of the Amended Treaty, obliged to cooperate with the Tribunal in the adjudication of the dispute. After the Tribunal had delivered its judgment, Zimbabwe was duty-bound to assist in the execution of that judgment and so is South Africa.” [4]
The CC’s view is clear: Zimbabwe is obliged to cooperate with the orders of the Tribunal, and South Africa is duty bound to ensure that the judgement is given effect to.
It is not a fait accompli acceptance that the land reform policy – expropriation without compensation – as applied in Zimbabwe – would necessarily fail a challenge of constitutionality here. Justice Cameron’s recent public comments, on the Constitution and the ‘willing-buyer, willing-seller’ policy, seem to confirm this [5].
Rather, this is an acceptance that where predetermined rules exist that bind a country, either domestically or abroad, it will remain bound by them and will be expected to honour them. Provided that reform happens within the context of our Constitution, a more radical land reform policy may very well be adopted.
Our Constitution is a unique document. Unlike other post-conflict societies, ours recognises the need for change as being a societal imperative. However it also recognises that the desire to bring about change may tempt those in power to act in a way contrary to our founding principles. It seeks then to constrain power and ensure that the rule of law is supreme and that our political rulers, whatever their ideology, cannot hide behind ideas such as sovereignty, or majoritarianism, to protect themselves from scrutiny. As a law abiding nation and responsible member of the global community, we should praise this judgment for protecting the vulnerable, especially when a government that is supposed to protect its people decides to turn on them.
NOTES
[1] http://www.hsf.org.za/resource-centre/hsf-briefs/the-sadc-tribunal-lives-on...-kind-of
[2] http://www.legalbrief.co.za/article.php?story=20130716082643636. Sunday Independent (14 July 2013), Console Tleane, a public servant and PhD candidate at the University of Cape Town. Tleane argues that the Court’s decision was “unwise” and that “the judges have simply put SA in a difficult diplomatic position.”
[3] http://41.208.61.234/uhtbin/cgisirsi/20130722104840/SIRSI/0/520/J-CCT101-12
[4] Note 3 above.
[5] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=387371&sn=Detail&pid=71619
Kameel Premhid – kameel@hsf.org.za
Intern
Helen Suzman Foundation