Remember al-Bashir, Mr Zuma

Since last week’s dismissal by the Constitutional Court of the rescission application by former president Jacob Zuma, the cry has gone up among Zuma’s most ardent supporters that international law is sacrosanct and the apparent failure by the Constitutional Court to observe its force is sacrilege.

Erstwhile Nelson Mandela Bay ANC councillor Andile Lungisa declared they would “go to the International Criminal Court (ICC) and the Human Rights Court”. Dudu ZumaSambudla insisted that the fight for international law’s application in SA would not only be big, it would be “very BIG!!!”

The Zuma Foundation informed the public that Zuma had instructed his lawyers to take the matter “to the African Court on Human & People’s Rights”. Zuma himself announced it was “astounding ... how the Constitutional Court has for the first time ever stated that it does not have to consider international law”. This is truly astounding because, leaving aside the gross and deliberate distortions of the court’s ruling, if Zuma has in the past been called a “notorious and serial constitutional delinquent”, that really pales alongside his international law delinquency.

In Law Society of SA vs President of the Republic of SA, then president Zuma’s decision to suspend the operations of the Southern African Development Community (SADC) Tribunal, and his signature on a protocol purporting to gut the tribunal of jurisdiction in respect of complaints brought by individuals, were challenged.

The Constitutional Court found that the “obvious effect or intent [was] to strip the tribunal of its jurisdiction over individual disputes, including challenges to violations of the SADC Treaty in relation to human rights, democracy and the rule of law”, for Zuma especially, the fact that there has not yet been any restoration of the tribunal’s jurisdiction must register as a personal misfortune if not a public shame. The tribunal was one of the few regional and international courts that might have entertained jurisdiction in respect of any claim he makes against the Constitutional Court.

Then there was the unedifying Omar al-Bashir spectacle. In the face of a court application for his arrest and surrender to the ICC on the basis of an indictment for crimes against humanity and genocide, al-Bashir was allowed to leave SA in the most mysterious of circumstances. That controversy resulted in the Zuma executive attempting to withdraw from the Rome Statute of the ICC, an attempt the Supreme Court of Appeal found to be unconstitutional and invalid. Reference to these examples is of course not to say that because Zuma, while president, made himself and indeed this country a hostile antagonist of international law and its application, that he should now as private citizen be ineligible for its protection. It is only to recognise the rich irony of where he now finds himself.

One could tell him and his legal advisers that the African Court on Human & People’s Rights will be of no avail. Even if it were inclined to entertain his claim, it has no jurisdiction. SA has not made the requisite declaration accepting the court’s competence to receive complaints from individual petitioners. As for any idea that the ICC might be approached ... Unless Zuma intends complaining that the court has committed war crimes, crimes against humanity or genocide, it is hard to see how any possible approach might be made.

Still, this may be that rare instance where good constitutionalists in this country profess ignorance of international law. It may be incumbent on us to wave the former president on his way, wishing him only the very best in his engagement with various international tribunals and forums.

That way our own courts might be spared any further approaches. Would that this were to be so.