On Zimbabwe, foreign policy and the limits of the law

What can a South African citizen expect from our government when he or she gets into trouble in a foreign country (maybe by smuggling vast quantities of tik or a bunch of Vuvuzela’s into the United Kingdom) or where his or her financial interests are affected by the policies of that country’s government (maybe when his farms are expropriated and redistributed to “War Veterans”).

In the case of Kaunda & Others v President of the Republic of South Africa and Others handed down in 2005 the Constitutional Court made clear that a South African citizen did not in fact have a right to diplomatic protection from our government when such a misfortune befalls him or her. (Although perhaps an exception would be made for the Vuvuzela-smuggler.)

One does have a right to request our government to provide one with diplomatic protection, and this means the government has a corresponding obligation to consider the request and to deal with it consistently with the Constitution. But as Chief Justice Chaskalson made clear in the Kaunda case, this “right” does not amount to much. (In other words, whatever you do, never smuggle Vuvuzela’s into the United Kingdom – even if you are a South African Airways air hostess and the smuggling of cocaine has become too boring.)

Said Chaskalson:

A decision as to whether protection should be given, and if so, what, is an aspect of foreign policy which is essentially the function of the Executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill-equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than Judges, and which could be harmed by court proceedings and the attendant publicity.

This does not mean that South African courts have no jurisdiction to deal with issues concerned with diplomatic protection. The exercise of all public power is subject to constitutional control. Thus even decisions by the President to grant a pardon or to appoint a commission of inquiry are justiciable. This also applies to an allegation that government has failed to respond appropriately to a request for diplomatic protection. For instance, if the decision were to be irrational, a court could intervene. This does not mean that courts would substitute their opinion for that of the government or order the government to provide a particular form of diplomatic protection….

If government refuses to consider a legitimate request, or deals with it in bad faith or irrationally, a court could require government to deal with the matter properly. Rationality and bad faith are illustrations of grounds on which a court may be persuaded to review a decision. There may possibly be other grounds as well and these illustrations should not be understood as a closed list.

It was therefore surprising when the High Court first found that the South African government had  failed to deal rationally, appropriately and in good faith with an application of Mr Crawford Lindsay von Abo (what a wonderful name!) for diplomatic protection in respect of the violation of his property rights by the Zimbabwean government. Even more surprising was that the High Court had ordered the South African government to take all necessary steps to have the violations of Mr Von Abo’s rights remedied within 60 days. If this was not successful, the government was ordered to pay an amount in damages to Mr Von Abo to compensate him for the losses he had incurred because of the violation of his rights by the Zimbabwean government.

Many lawyers said at the time, that this High Court judgment was completely wrong and that it was not in line with the Constitutional Court precedent on the matter.

In a judgment handed down on Monday, the Supreme Court of Appeal (SCA) agreed with this view — well, sort of. It criticised the High Court for trying to prescribe to the President and the Department of Foreign Affairs (now the Department of International Relations) how to conduct its negotiations with the Zimbabwean government and for ordering the South African government to pay damages to Mr Von Abo for the loss he had incurred due to the actions of old Bob Mugabe and his cronies. Snyders JA, writing for a unanimous bench, wrote:

The conclusion by the court below that the appellants [including the President and the Minister of Foreign Affairs!] had to have personally taken steps and deposed to affidavits, unrealistically and naïvely ignores that diplomatic actions involve complex and sensitive relationships conducted through an extensive hierarchy according to a particular protocol which, if breached, could result in failure even before the substance is considered. It was also unrealistic to have expected the appellants to comply personally with the second order within the short time frame of 60 days without taking account of relevant facts like other pressing matters of state, that may have made it impossible for them to comply personally with the order.

In issues relating to our government’s interaction with its Zimbabwean counterpart, the President and the Minister of International Relations (as she is now called) exercise a political discretion. When the SA government engages with Bob Mugabe and his government, they must obviously have some leeway to decide how to go about it. At the same time, they must not act irrationally or breach the Constitution in any other way when they do so. It is a difficult issue and courts must be careful not to muddle in policy issues in a manner that has less to do with constitutionalism and more with naked politics. One would not want the Zimbabwean army to invade South Africa (given the shambles in which our Defence Force finds itself in) merely because the President had said the wrong thing to President Mugabe or had been a bit too insistent in asking questions about Mr Von Abo’s farms because he was instructed to do so by any judge.

Even though the role of the court is therefore limited, our Constitutional Court jurisprudence is quite radical on this score as it insists that even the exercise of such powers are reviewable by our courts. Although the review will seldom be successful, it establishes the principle that no exercise of public power is free from judicial scrutiny — even if it is in aid of advancing “national security”. The President or a Minister can be found to have acted unconstitutionally because he or she had not acted in good faith or had acted irrationally. This is a very high standard to meet and it would be rare for a court to find that the President or the Minister had not met their constitutional obligations in terms of the principle of legality.

Curiously the SCA did not seem to stick to the law as so admirable described by the judgment. Instead of dismissing the entire order of the High Court, the SCA confirmed that part of the order of the High Court which declared that the failure of the President and his Ministers to rationally, appropriately and in good faith consider and decide the respondent’s application for diplomatic protection in respect of the violation of Mr Von Abo’s rights by the Government of Zimbabwe is inconsistent with the Constitution and hence invalid. This it did because the President and Ministers had not provided detailed enough reasons of what they had done to try and assist Mr Von Abo.

The reasoning is very thin and unconvincing. The SCA seems to rely on rather dubious legal reasoning that does not seem to comply with the letter and the spirit of the Constitutional Court precedent. Yes, the government had not provided detailed answers to what it was doing  to assist Mr Von Abo. But it had taken some steps to fulfil its obligations and it is far from clear that this was irrational. We might not like what the government did or did not do, but that does not mean it had acted unconstitutionally.

Worse, as the SCA points out, this order that the appellants’ response does not conform to what is demanded of them in terms of the Constitution, was “of theoretical value only”. It did not order the President or the Ministers to do anything. It merely found that what it had done so far does not conform to what is demanded by the Constitution. So while Mr Von Abo now has a SCA judgment which confirms that his rights have been infringed, he still loses the case because the government is not ordered to do anything to correct its alleged “mistakes”. This leaves the SCA looking impotent and toothless: having been “reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship” (in the words of the late Chief Justice Ishmael Mahommed).

What this case demonstrates rather well is that the courts are not always the appropriate forum for the handling of essentially political disputes. Mr Von Abo in essence is upset that the South African government’s foreign policy towards Zimbabwe was too tentative and timid and was therefore far less successful than it could have been. But a court of law is not the place where foreign policy should be decided. If we think the ANC government is not following the correct policy towards Zimbabwe, we should vote against the ANC in the next election or organise civil society opposition to the policy in an attempt to get the government to change it. This is not the work the courts can do for us.

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