It turns out the Lawyers in Durban who are in the process of launching an urgent application in the Durban High Court to stop the trans-shipment of six containers of arms from the Durban Harbour to Zimbabwe might very well have a strong case.
It turns out the South African parliament passed the National Conventional Arms Control Act 41 of 2002, a wonderful piece of legislation aimed at controlling the manufacture, marketing, exportation and conveyance of conventional arms in South Africa.
According to section 13 of the Act any person who wants to manufacture, market, import or convey conventional arms in South Africa needs a permit that must be issued by the National Conventional Arms Control Committee (NCACC). Those arms in the Durban harbour could therefore only be transported to Zimbabwe if the conveyancing permit was validly issued by the NCACC.
I assume the court challenge in Durban will centre around the validity of the decision by this Committee to issue such a permit and will ask the court to review and set aside the decision of the Committee to issue the permit. They will probably argue that the Committee failed to adhere to the provisions of the Act when it issued the permit and therefore acted ultra vires.
Section 15 of the Act states that when it issues such a permit the Committee must, amongst other things:
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avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms;
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avoid transfers of conventional arms that are likely to contribute to the escalation of regional military conflicts, endanger peace by introducing destabilising military capabilities into a region or otherwise contribute to regional instability;
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avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms;
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avoid the export of conventional arms that may be used for purposes other than the legitimate defence and security needs of the government of the country of import.
The Committee will have great difficulty showing that the Zimbawean government does not systematically violate or suppress human rights and that the arms would not be used for the internal oppression of those who oppose the Zanu-PF regime. Any person who watches television from time to time (but probably not the President of South Africa) will be able to tell you that Mr Mugabe’s regime is an oppressive one and that arms destined for the Zimbabwean Defence Force are more likely than not to be used to assist in the internal oppression of the people of Zimbawe.
There is therefore a strong possibility that a court could find that the Committee who issued the permit did so in contravention of its obligations as set out in the legislation. One might well wonder why this Committee, chaired by Defence Secretary, January Masilele, was so eager to issue the conveyancing permit. That is, until one studies the Act and notices that this Committee is appointed by President Thabo (“there is no crisis in Zimbabwe”) Mbeki and is made up of Ministers, Deputy Ministers and other persons appointed by the President.
People even less cynical than me would begin to wonder whether such a Committee would Act in such a sensitive matter without at least informally sounding out the President. But maybe it is time for the two centers of power to do some good and for the ANC to send out a strong signal that the shipment of arms to Robert Mugabe’s government is untenable. Who knows, the Committee might suddenly have a re-think after careful consideration of their political futures.
A statement from the ANC would also give a judge some political cover to make a ruling against the government on such a politically sensitive issue. Now, if those people in Luthuli House could just stop obsessing about the Scorpions for a day or two, they might do us all some good in this matter.
Just this morning, while listening with half an ear to Radio Gaga, I heard a chap by the name of Oosthuizen (who called himself a military expert), say that another Chinese vessel bearing arms for Zim was headed for our shores but had now been diverted to Beira. He didn’t want to identify his sources, but said he knew for a fact that both consignments had been ordered days after the Zim elections. Now it may be that this guy’s a nut-bucket; if it’s true, that would be rather worrying. Oh, and he also mentioned that members of the SA army were for some obsure reason gathering at Beit Bridge.
Suspect its a nutter, Martin Weltz from Noseweek has the papers and it was ordered in January.
The latest news on the shipment in question is that within an hour of the Durban High Court interim order prohibiting the off-loading of the weapons and armunition and placing the ship under curatorship of the court sheriff the Chinese ship lifted anchor and cleared the Durban port (mail&guardian online, 19 April). Heaven knows where its headed. May be to Beira like the one Clara is talking about.
Pierre, thanks for the legal position on the issue. I almost posted a response to your original post. Presuming that SA could not legally stop the shipment of the weapons to Zimbabwe, I wanted to say that I was very proud of the fact that the applicants, Anglican Bishop Rubin Phillip and Patrick Kearney, a former activist and executive of the Diakonia Council of Churches and their lawyers were prepared to legally fumble their way to the Durban High Court to stop the conveyance of weapons via SA to Zimbabwe. I wanted to say that this spoke volumes of not only our moral but our humanitarian values as well.
Even now that I know that they were not fumbling their way to the court, but that there is clear law governing the issue, I am even more proud of them for taking the initiative on behalf of all of us caring South Africans, excluding Thabo Mbeki, just like I am proud of that guy who has taken the govt to court to stop it from disbanding the Scorpions.
I feel even better to learn that Nicole Fritz, director of the Southern African Litigation Centre (SALC) says that SALC will take the same legal action as in Durban should the ship in question dock in Mozambique(mail&guardian online, 19 April) .
About the fact that our govt was prepared to and saw nothing morally wrong with allowing weapons to be conveyed via SA to a politically unstable neighbouring country, I say, like Hillary Clinton, shame on our govt.
This is larger than the arms been transported to Zimbabwe. Rather it should be an indication (mainly to you constitutional gurus) about the leadership of the current ANC-led (and controlled) by Thabo Mbeki and the disgusting manner into which he has reduced the lives of millions into mere debates. From his HIV/AIDS denial, crime, Jackie Selebi and his quiet diplomacy in Zimbabwe, the urgent need of a solution is long over due. But of importance is how ‘his’ legacy (if he has one) is been presently scarred by his refusal to act decisively on the matter. On the 29 of March the peoples of Zimbabwe through hardships went to the poles and marked a turning point in post colonial Africa. Regardless of a flawed election they sought to change non-violently what they have been denied violently. The people although passive (for now), sought to remind all Africans and the world at large that all (i.e. black and white) have a role to play in Zimbabwe. Their voice has been heard by all except South Africa! The lives of millions are now on the scales held by Thabo Mbeki and he dares not fail them again. For the blood that will fall won’t be splashed to the floor but on his hands, he will have to answer when asked of about the red stain.
I have always wondered a few questions and their possible answers:-
1.) What has Thabo Mbeki not done?
2.) What should he do?
3.) When he does what he should do, what will be the result?
4.) Had he done what he should do, what shape would Zimbabwe have at this stage?
5.) Give examples of elsewhere in the world, where what Mbeki should have done has worked.
I really hope the Know It All’s in this blog would respond.
Khosi: Thabo Mbeki should have done and should be doing what Jacob Zuma and Luthuli House are now doing. That is, refuse to legitimise stolen elections; pressurise Mugabe to stop violating human rights and abusing the electorate; publicly condemn the Zimbabwe crisis and prevent the transmission of arms and other resources to a corrupt government; impose smart sanctions to prevent Mugabe and his cronies from travelling to SA for their medical treatment and shopping trips (Zuma’s not talking about this last measure but he should be).
I’m sick of this “What can we do?” argument from Mbeki-ites. It is not as though the only options are (a) what Mbeki has done (effectively prop up Mugabe by doing nothing) or (b) military invasion / economic sanctions. There are other effective ways to put diplomatic pressure on Mugabe.
Examples where external diplomatic and economic pressure have helped a transition to democracy, or at least forced conflicting parties to the negotiating table: apartheid South Africa; post-war Japan and Germany; Ireland; the 1979 Lancaster House agreement in Zimbabwe; Kenya just months ago.
Since you are clearly a smart individual, I can only assume that your blind support for Mbeki is motivated more by personal loyalty than a fair evaluation by his catastrophic failures on Zim, on Aids, on the arms deal. I for one am feeling much more sanguine about the prospect of a Zuma presidency now that I realise just how pathetic a leader Mbeki has been.
Nick,
I think you skipped questions 3 and 4.
Interesting point. The question, however, is whether “conveyance” in the Act only refers to South African arms exports or conveyance (unless there is a UN arms embargo) Therefore – court order was unopposed because most likely the RSA government (and the Chinese) did not want legal wrangles and delays?
This is an old colonial adage, that the only way to get these Africans to respond is to shout at them. Well people have been shouting at Mugabe for years. The only result that has achieved is that the only person who still has his ear is the person that people are saying should shout at and isolate Mugabe. Can anyone on this blog, assert that Zimbabwe would be better off at this point had Thabo Mbeki done the things that people say he should do.
People speak of blood on Mbeki’s hands, as if Thabo Mbeki created the mess in Zimbabwe. Well he did not. This is what happened in Zimbabwe:-
1.)White people invaded Zimbabwe
2.)With guns and bombs, their stole all the land that belonged to indigenous Africans
3.)Mugabe liberates Africans from white rule and promises are made, ironically for you Nick, at Lancaster that white land owners would be compensated so that land is returned to Africans.
4.) Like many promises that the west makes, this one is broken.
5.) Mugabe takes the land back and gives it to Africans
6.) The West oppresses Zimbabwe and the country falls to its knees.
7.) Thabo Mbeki is blamed.
OK, in response to 3: at the very least, South Africa’s credibility as a bastion of democracy and human rights will be restored. Possibly, Mugabe and his thugs will feel pressured into considering a compromise with the MDC. They might even think about announcing the election results and stopping Operation How Did You Vote. One thing is certain: undertaking the measures I have suggested cannot possibly have worse results than Mbeki’s actual policy. So even if nothing important changes in Zim, nothing will have been lost and we will have regained important international credibility.
I’m not going to engage with 4, as it’s a silly question – I’m not in the business of counterfactual historical analysis. But it doesn’t take a genius to know that Mbeki’s diplomatic failures have, at the very least, contributed to Mugabe’s ability to cling to power. No-one can be certain exactly where we’d be if he had demonstrated any moral courage or political nous; but that can’t be an argument in favour of prolonging Mbeki’s ineffectual attempts at engagement.
My only point about Lancaster House was that it is an example where external diplomatic pressure forced conflicting parties to the negotiating table.
And I never once blamed Mbeki for the conflict. As you say, the blame rests with Mugabe and colonialism. The point is, given the problems Zim has, has Mbeki’s response been effective or morally acceptable? The answer remains no, and nothing in your post even attempts to answer this claim.
By the way, this is hilarious: “6.) The West oppresses Zimbabwe and the country falls to its knees.”
You mean after Mugabe took over and Zim was the breadbasket of Africa? What oppression are you talking about? It was Mugabe that drove Zimbabwe to its knees. He didn’t need any Western help there.
Nick,
You say,
“South Africa’s credibility as a bastion of democracy and human rights will be restored.”
You took the bait and here lies the absurdity of your argument. Who installed South Africa as the bastion of morality, democracy and human rights, in the first place? Do you know our history? What gave us the right to declare ourselves better that other Africans? Nothing absolutely NOTHING gives us that right. You see, the West has this need to judge us Africans using standards that they themselves cannot uphold. Human rights cannot be the shield that ensures that the ravages of colonialism remain as the status quo, in perpetuity.
Why should our country act as a proxy for the West in any case? As an African, the West cannot tell us about human rights when the very human rights were violated in the stealing of what is ours are being used to keep what was stolen.
Khosi, democracy and human rights are not a western standard. They are South African values, enshrined in our constitution. Isn’t this what Nepad’s peer review mechanism is supposed to do – promote good governance and human rights across the continent?
Unless you think that Mbeki’s whole African Rennaissance idea just boils down to acting “as a proxy for the West.” Surely we can recognise human rights violations next door without becoming a tool of colonialism?
You have yet to engage with my criticisms of Mbeki’s non-existent diplomacy. I can only be thankful that the ANC has seen through this kind of rubbish and shown Mbeki the door.
Nick,
You do not think a lot, do you my friend? My not engaging ‘Mbeki’s diplomacy’ stems from the fact that in general I do not answer obvious questions. Whose diplomacy has succeded in Zimbabwe?
If we let our country’s influence be used to settle scores that the West cannot settle on their own, then we are a proxy for the West. There is nowhere in Nepad where it says Africans should allow the West to use Nepads’ democracy and human rights mandate as a shield to protect the ravages of colonialism and keep the status quo.
Is the maintanance of the colonial status quo not a violation of human rights? Really, who gets to abuse the human rights and who does not?
Khosi -
You forgot to mention the Matabeleland slaughters – where no whites, but countless fellow black Africans were murdered by the Mugabe regime, which is why, obviously, Mugabe and his cronies are clinging to power and opression that they have been using since. If they let go, the law will deal with them for their crimes against humanity; but, if they remain in power, no one can touch them for the international principle that sitting heads of state may not be prosecuted in national or international tribunals for international crimes that they commit during their rule – viz the ICJ’s blunder in the Ndombassi: Belgium v Congo case. What have happened since 29 March 2008, and since the ballot of the presidential election has been kept secret pending the outcome of the ‘re-count), is that MDC supporters have been killed, assaulted, tortured and jailed, some electoral officials have been jailed and charged with rigging votes in favour of the MDC without a recount to prove it, and independent journalists have been jailed and charged; all so as to make certain that Uncle Bob comes out tops in a re-ruin (excuse the pun, but it was intended), while he had a clear minority of support at first.
Nick -
Khosi is renowned (notorious, if you wish) for his argument that, because you cannot prove (on a ‘factual basis’) that something Thabo Mbeki did or did not do is wrong, then you have no argument at all. He doesn’t seem to understand the concept of circumstantial evidence and inferential reasoning – and he does not have the foggiest idea of what the difference between fact and speculation, and between speculation and inference are. And, then he tends to agree with Mugabe (and, possibly Mbeki?) that, to free the Zim nation by voting for the MDC (or by letting the MDC and Morgan Tsvangirai win), it would be tantamount to “mainenance of the colonial status quo” in Zim.
Mike Hough –
I agree with your point that it would depend on judicial interpretation of the act for an eventual outcome on whether ‘conveyance’ of the arms imported by Zim would be in contravention of the act. However, even before the vessel could be served with the court order the pigeon has flown the coup – and heaven knows where the ship will now be off-loading its cargo, so dearly needed by the Zim regime in order for them to de facto hold onto the power. We are living in dark times indeed if such a close neighbour thinks so little of democracy, and our head of state goes and supports him! (P.S., I am an ex student of yours, but am sitting in a public office position where I dare not disclose my true identity.)
Having just digested the above exchanges, I have come to the realization that it is futile, as a Eurocentric (i.e. white), to argue with Afrocentrics such as uKhosi. Remember what happened at the Europe-Africa Summit held in Lisbon last December, when Germany’s Angela Merkel sharply criticized Robert Mugabe, whereupon African leaders immediately closed ranks against her, their main argument being that they didn’t like being dictated to by whites. Thabo Mbeki was heard to fume: “What is she talking about?”
Khosi. Mbeki may not have created the mess, but he had (or has) the ability to stop it! If we had to consider your line of reasoning, then why is he involved in negotiating a settlement, although according to him does not exist-huh. I guess the ‘old man’ could not have played his cards better, to be able to pull the wool over the eyes of not only the common peoples by our own ‘intellectuals’, tells the sorry state of objective reasoning within Africa. Not to beat about the bush Mugabes polices are racist in all forms. And by the way, least it erupts, Khosi, I am black!
To all of you.
is the maintanance of the colonial status quo not a violation of human rights. is the status quo not racist?
Answer that and stop telling me what color of the skin you are as if black people were never used to oppress their own.
Clara,
I just read your statement and I take serious exception to it. Are you in affect saying that Afrocentric view are absurd and not worthy when pitted against Eurocentric ones? Mqo(Mr I am black) I hope your eyes start opening.