As a general rule, international law is South African law. There are, however, a few quirks in diplomatic and political customs between nations that should not be tolerated in the Republic of South Africa.
The supreme law in South Africa is the Constitution and the Rule of Law as provided in section 1(c) of the Constitution. At the heart of the Rule of Law is the notion that the law will be applied to the political class just as it would be applied to ordinary people. The opposite of the Rule of Law is the rule of man, where the elite exempt themselves from the laws they enforce upon the rest of us.
Whether it is the Rule of Law or the rule of man that reigns in practice in South Africa is no longer as clear-cut as the Constitution envisioned.
The Minister of International Relations and Cooperation sparked controversy recently when she granted immunity to the First Lady of Zimbabwe who is suspected of having assaulted a South African woman. Section 7(2) of the Diplomatic Immunities and Privileges Act allows the Minister to confer immunity on an individual if it “is in the interest of the Republic”. The First Lady was not here to conduct any official Zimbabwean business but to visit relatives who live in Sandton.
The Rule of Law requires officials and politicians not to be granted unbridled discretion in the exercise of their duties and for the law to be clear, unambiguous, and its application reasonably predictable.
All else being equal, the people of South Africa should have expected the First Lady to be detained and for a power meant mainly for affairs of state not to have been used to excuse criminal conduct. South Africans, unfortunately, have become so used to the absence of the Rule of Law that hardly anyone seems to have been surprised by the Minister’s decision.
Old guard lawyers would argue that the concept of the “public interest”, as contained in the Act, is clear in South African law. Practice, however, usually does not live up to theory. According to the Minister, the conferment of immunity on the First Lady was in the public interest.
It makes no difference that the Minister apparently “agonised” about the issue and applied her mind. The problem is that it took her mind only and not strict criteria and legal principles, to determine the decision.
The judiciary is a strong institution because judges have to write lengthy explanations, based in established legal doctrine, on how they came to their conclusion. For the Minister, it was a case of simply granting immunity and issuing confirmation thereof.
It should not be an “agonising” task for an executive functionary when it comes to enforcing the law. It should, sans unnecessary political considerations, be quite easy, and Parliament must facilitate this ease of governance by observing the principles of the Rule of Law in its legislative drafting.
The Diplomatic Immunities and Privileges Act needs to be changed to reflect that South Africa’s constitutional dispensation is founded on the Rule of Law.
For the Minister to have the discretion to grant immunity at all – no doubt a necessary feature of a diplomatic state – criteria and guiding principles must be added to more clearly define the context and appropriateness of such a decision. “Public interest” is insufficient and inherently allows officials and politicians to legitimise otherwise nonsensical conduct for political reasons.
Decisions must also be justified in detail. “Safeguarding South Africa’s relationship with Zimbabwe” is not a good enough explanation by any standard. The wrath of Zimbabwe, which is, to all intents and purposes, dependent on South African employment, energy, and aid, is not something the South African government should fret about. Government should be more concerned with upholding the Rule of Law.
There can no justice if political elites – whether foreign or domestic – are free to do as they please. Politicians assaulting unarmed women during Women’s Month without consequence does not bode well for the health of our legal order.
Martin van Staden is Legal Researcher at the Free Market Foundation and Academic Programs Director of Students For Liberty in Southern Africa
This article was first published in The Gremlin on 22 August 2017