Mercenaries are a blight on this continent. So there was an understandable reluctance to mount a case in favour of the group who were arrested in Zimbabwe earlier this year.
But it is in the hard cases that our constitutional commitment is best tested. Kaunda and Others v President of the Republic of South Africa and Others is an example of how the Constitutional Court has met this test. The case came before the court on an application to order the government to secure the release of a group of 69 South African citizens from Zimbabwe and Equatorial Guinea, further declaring that the government request their release and/or extradition from either Zimbabwe or Equatorial Guinea. Writing for the majority of the court, Chief Justice Arthur Chaskalson found that the applicants’ reliance on Section 7(2) of the Constitution, which imposes obligations on the state to protect and promote the rights enshrined in the Constitution, was misconceived in that the Constitution did not apply extraterritorially.
The chief justice acknowledged there may well be circumstances where a government, under international law, is obliged to provide assistance to its citizens where “egregious breaches of international human rights … come to its knowledge”. But in his view, these were rare cases. In any event, it was not for courts to tell the government how to act in these circumstances.
To the applicants’ argument that the group of arrested men faced the death penalty if convicted, the chief justice acknowledged that South African law recognises that the death penalty is a cruel punishment and is contrary to the Bill of Rights. However, capital punishment is not prohibited in terms of international law.
The majority of the court found that representations by the government could be made at any time before execution of a sentence, and it held that it was not for the court to prescribe the details of a policy to the government in such a case. In a concurring judgement, Judge Sandile Ngcobo found that there “is a compelling argument for the proposition that states have … a legal obligation to protect their nationals abroad against an egregious violation of human rights”.
The South African concept of citizenship includes the right of a citizen to request protection from the government when that person’s human rights are violated, irrespective of whether the person is abroad. But Judge Ncgobo also found that the government has the discretion to assess when and in what manner to grant protection to its citizens. Furthermore, our Bill of Rights does not bind foreign governments.
Judge Catherine O’Regan, with whom Judge Yvonne Mokgoro concurred, found that Section 3(2) of the Constitution — which provides that all citizens are equally entitled to the rights, privileges and benefits of citizenship — was of critical application in this case. In the view of these two justices, this section mandates the government to protect all aspects of citizenship, including the right to diplomatic protection.
Judge O’Regan proposed that the appropriate relief would have been an order declaring that the government bore an obligation to provide the applicants with diplomatic protection.
The majority judgements appear to read down the significance of the Constitution regarding the conduct of the executive — and this from a court that not so long ago held that the presidential power to pardon prisoners was reviewable. The judgement of the chief justice is truly a model of deference to the executive.
Judge Ncgobo’s judgement asserts the rights of citizens who suffer human rights abuses abroad with great and commendable vigour, but somehow this assertion of rights is trumped by the rights of the executive to decide for itself how and if it should act.
Only the minority managed to achieve a balance between the rights of applicants and the prerogative of the executive to conduct relationships with foreign states.
The Kaunda case was a tough one and it is arguable that no general implication can be drawn from the majority judgements. But there is the uncomfortable feeling that the court may well be developing a jurisprudence for the second decade of constitutional government that is more sympathetic to the executive than it was in the first.