The ICC pricked Zuma’s pride at a time when authoritarian populism is on a roll

Amid the cacophony and calamity of South Africa’s politics, it is hard to maintain a sense of perspective. What matters most? The crisis on campuses across the land? The capture of the state by politically connected cowboy capitalists? The self-inflicted harm that flows from President Jacob Zuma’s assault on his own minister of finance, Pravin Gordhan? The attempt to subvert procurement processes in pursuit of nuclear energy at all costs? Or the independence or otherwise of the new public protector?

The nation is suffering from scandal fatigue. It’s hard to summon up the energy to get agitated about everything that does or should matter.

Then into this dizzying cocktail of seminal events comes Romexit: South Africa’s withdrawal from the Rome Statute, which established the International Criminal Court (ICC). Again, the question raises its head: How important is this and how much should we care?

Elsewhere, international relations expert Oscar van Heerden has argued that we should avoid collapsing this matter into the binary paradigm that governs so much of the current era, the paradigm of “good guys” versus “bad guys”.

He is right. The ICC requires as much of a nuanced understanding and critique as does the complexity of the student crisis. It is an especially vexing issue for progressive democrats, not least because so much of the international legal and financial system is premised on liberal or neoliberal ideas.

The traditional progressive position is to support internationalism and multilateral engagement of the kind envisaged by the architects of the Rome Statute. Yet when the justice that such a system ought to dispense is, on closer scrutiny, found to be less than even-handed in its distribution and contaminated by double standards, then one is forced to ask a different question: If the hypocrisy of the system and the institutional flaws in the process that it tends to follow are so great, is the right response to seek to change from within or from the outside?

This is a similar question to that which faced the British people in the case of their Brexit vote in June. They voted to leave – not, it is now clear, because of a careful consideration of the pros and cons of belonging to the European Union, humanity’s most sophisticated experiment in hemispheric economic and political integration, but out of anger and frustration with the failure of domestic politics – representative politics in particular – to be responsive to the needs of millions of men and women in the north and east of England.

Before I continue to attempt to join the dots between global and domestic political trends, let me try to dispense with one important issue of constitutional law that arises from Pretoria’s decision on the ICC.

As the Council for the Advance-ment of the South African Consti-tution (Casac) says in its founding application challenging the lawfulness of the decision, the matter raises for the first time a question that falls squarely in a sensitive area of the doctrine of separation of powers: Which branch of government – the executive or the legislative – has the power to withdraw from international agreements?

Although the question has not yet been considered by our courts, the likely answer is that, because South Africa became a signatory to the Rome Statute through an Act of Parliament, only another Act (repealing the other) can authorise withdrawal from the ICC. Section 231(2) of the Constitution makes it clear that only the National Assembly and the National Council of Provinces can approve or withdraw from international agreements.

Coincidentally, Britain is now having a similar debate – which will also be settled by the courts – about whether its withdrawal from the EU has to be ratified by Parliament first, or whether the government must act on the “advice” of the British people as expressed in the June referendum.

In their different ways, Brexit and Romexit would undermine internationalism at the time when supranational governance is required to overcome the grand challenges of the age: climate change and the execution of the Paris Agreement, acts of terror and war, population growth and the refugee crisis, as well as the implementation of the sustainable development goals agreed on a year ago.

But the popular response at domestic level is to regard multilateral governance with, if not contempt, then at least suspicion and cynicism. Caught in the middle, political leaders around the world are either turning towards a toxic mix of nationalism and populism or are failing to stand up to nationalist (or, in some cases, fascist) popular movements. Weird anti-establishment political figures are emerging nearly everywhere.

The rise of the right in Europe is one example. Donald Trump’s rise in the United States is another.

In South Africa, there is Julius Malema’s own version, but Zuma’s authoritarian populism and chauvinism may prove, at least in the short term, to be more dangerous.

I find useful political economist Dan Rodrik’s notion of the “trilemma” posed by three competing forces: hyper-globalisation (alongside advanced economic integration), domestic politics and national sovereignty. As he argues, the difficulty is that they cannot all be aligned or satisfied – at best, only two, not all three.

Thus, by means of Brexit, Britain regains a form of Little-Englander “national sovereignty”, but then loses influence in a hugely powerful multilateral organisation, albeit one whose power will be significantly dented by Britain’s departure.

So, too, the international system of criminal justice, and attempts to bring murderous despots to book, will be weakened by South Africa’s withdrawal from the Rome Statute.

This was a decision not based on a careful consideration of the merits and demerits of the ICC and whether withdrawal is the best way to address its weaknesses, for otherwise it would have been subject to a process of public consultation and then parliamentary scrutiny, instead of a sudden, pre-emptive decree.

Rather, as some little birds inform me, Zuma was tired of being teased by some leaders he visited on the continent about the fact that he had been ordered by the courts to arrest Sudan’s President Omar al-Bashir. Zuma doesn’t care to be told what to do; he cannot understand why the courts, or anyone else for that matter, have the authority to constrain his power. His pride pricked, Zuma moved to remove the “embarrassment”.

Just as Russian despot Vladimir Putin was pleased by Brexit’s weakening of the EU and would be delighted if Trump won the US election, so too, in the case of Romexit, it is revealing to see who in Africa welcomes South Africa’s withdrawal from the ICC.

Certainly not the members of the families of people killed at the hands of al-Bashir and his ilk. Nor those who live in the shadow of fear and death elsewhere on the continent. South Africa’s withdrawal will serve mainly to lengthen that shadow and further dim the light of principled leadership it lit in the 1990s.

As Casac’s executive secretary, Lawson Naidoo, put it in the affidavit: “South Africa will no longer participate in the only global mechanism that can effectively hold those accused of the most serious of crimes – including genocide, crimes against humanity, war crimes and torture – accountable for their actions. This can only be described as an unfortunate decision. It strikes a blow against the international protection of human rights and turns South Africa into a safe haven for those whom the Constitutional Court once described as the enemies of all humankind.”

Even though the sands are shifting significantly in a deeply divided ANC and the momentum has turned against Zuma, the ICC decision is a sad reflection on South Africa’s political direction. This is South Africa once again turning away from the world and from international law, as it did during apartheid, and for all the wrong reasons.

Dare I say it? Yes: Nelson Mandela must be turning in his grave.

Richard Calland is a member of Casac. His new book, Make or Break: How the Next Three Years Will Shape South Africa’s Next Three Decades, is published by Zebra

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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