Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
27 February 2011

On selling arms to the Brother Leader Gaddafi

Muammar al-Gaddafi is clearly an unhinged, narcissistic, megalomaniac. The fact that he looks like a very scary, aged, version of Michael Jackson might be interesting and (for those of us not living in Libya) rather amusing, but the fact that he could appear on television this week and state that anyone who lifted their arm against the regime would be executed (those would be all you “rats” and “cats” who have had a cup of drugged Nescafe and was therefore acting as agents of both Western imperialist and al-Queda forces) suggest just what a thoroughly evil and unhinged man he is. He might have been generous to the ANC (and according to completely unconfirmed rumours, to President Jacob Zuma personally),  but that does not mean that he is not a very bad and dangerous man.

In its 2010 report on human rights abuses in Libya, Amnesty International concluded that despite some reforms the Libyan government continued to be involved in the systematic violation of the human rights of its citizens. It stated that freedom of expression, association and assembly continued to be severely curtailed and that the authorities showed little tolerance of dissent.

Critics of the government’s human rights record were punished. Former detainees at Guantánamo Bay returned to Libya by US authorities continued to be detained; one died in custody, apparently as a result of suicide. Foreign nationals suspected of being in the country irregularly, including refugees and asylum-seekers, were detained and ill-treated. An official investigation began into the killing of prisoners at Abu Salim Prison in 1996 but no details were disclosed and some of the victims’ relatives who had campaigned for the truth were arrested. Hundreds of cases of enforced disappearance and other serious human rights violations committed in the 1970s, 1980s and 1990s remained unresolved, and the Internal Security Agency (ISA), implicated in those violations, continued to operate with impunity.

Human Rights Watch also found that in 2010 the Libyan government continued to imprison individuals for criticising the country’s political system or its leader, Muammar al-Gaddafi, and that it maintained harsh restrictions on freedom of assembly and expression, including penal code provisions that criminalise “insulting public officials.” The Human Rights Watch also criticised the security forces for its violation of international human rights law.

Last year the South African National Conventional Arms Control Committee (NCACC) authorised arms trade between South African companies operating in defence-related industry and the Republic of Libya. The NCACC can only authorise such a sale if the requirements of section 15 of the National Conventional Arms Control Act  41 of 2002 are complied with.

Section 15 of this Act states, inter alia, that when considering applications for the sale of arms to other governments the Committee must “avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms”; and must “avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms”. The NCACC must also consider various other factors not relevant to the current sale of arms to Libya.

On the face of the available evidence, it therefore seems as if the NCACC unlawfully authorised the sale of South African manufactured arms to the clearly unhinged Libyan dictator — who happened to have donated a lot of money to the ANC in the past. This is the kind of thing that one obviously expects from the United Kingdom or the USA governments who put profit above principle no matter what, but which our progressive ANC-led government outlawed in 2002.

As the NCACC is legally required not to authorise the sale of arms to a government that systematically violates the human rights of its citizens, one might wonder why they agreed to the sale of arms to Libya. The NCACC consists of “such Ministers and Deputy Ministers as the President may appoint” and such other persons as the President deems necessary. The NCACC is headed by the Minister of Justice, Jeff Radebe.

By far the most plausible — but obviously not sustainable — justification for the sale of arms to the Libyan government would be that the Libyan government actually did not systematically violate the human rights and freedoms of its citizens. The facts obviously demonstrate that such an argument would be close to laughable but that would have been the only plausible argument open to the South African government to justify the sale of arms to the Libyan dictator.

One imagines that another argument that some untalented and not very bright hack (like the state law advisor) might come up with to try and excuse the inexcusable would be that although section 15 is phrased in peremptory terms, the section is headed “guiding principles and criteria” and therefore that the various injunctions contained in section 15 did not have to be obeyed by the NCACC. But the use of the word “must” as well as the use of the word “and” in the second last subsection makes it clear that every single requirement mentioned in section 15 had to be adhered to. Unless one has a rather shocking lack of knowledge about how to read the provisions of an Act the content of section 15 is pretty clear.

Unfortunately it does not seem to be clear at all to Minister Jeff Radebe. Maybe the Minister decided that it would not be good for his image to claim that certain facts existed when they clearly did not. After all, this might have made him appear only slightly less unhinged than Muammar al-Gaddafi and his sons in various speeches and interviews over the past few days. The Minister therefore had to find another interpretation of the applicable law to justify what, to me, seems unjustifiable. In justifying the sale of arms to the Libyan government Minister Radebe stated that:

All decisions taken by the NCACC are preceded by investigations that are undertaken by the subcommittees established in terms of the Act. These subcommittees have a legal duty to report to and advise the NCACC on matters that relate to its business, including the arms trade. In this way we can confidently indicate that in all transactions that were undertaken and concluded with Libya, we had satisfied ourselves, through a meticulous process, that there was compliance with the guiding principles and the criteria laid down in our law. As we have said in the past, in making decisions the NCACC considers in aggregate, all principles reflected in our legislation. No single principle is considered in isolation of the others.

At the time when the transaction was concluded with Libya, there was no evidence available to the effect that there would be any political unrest in that country; this extends to the region (North Africa and parts of the Middle East). Similarly, there was no evidence that if political instability were to occur, that it would turn out violent in Libya or in any of the countries with which arms trade had been concluded. Some in the media or through the use of media as a platform have been quick to conclude that the deaths that have been reported in Libya during the period of political unrest have a direct link with the arms sold by the South African companies to Libya. There is no evidence available to back up such a claim.

This answer suggests that the Minister is either unfit for the office he holds as he lacks the basic ability to grasp a pretty clear and unambiguous instruction contained in the relevant piece of legislation, or that he and his Committee have deliberately flouted the law and is now trying to mislead the public about this matter.

Section 15 does not allow the Committee holistically to take into account all the factors set out in section 15 and then to make an overall assessment of whether, on balance, it would be advisable to sell arms to the country concerned. The statement by the Minister that no single principle should be considered in isolation of the others when considering whether arms should be sold to a foreign government is therefore clearly and even embarrassingly wrong.

When an act orders that our government must avoid selling arms to a government that systematically suppress human rights and freedoms there is not really room for manoeuvre. Minister Radebe seems to want to interpret the word “must” to mean “need not” — a mistake no person with even a passing knowledge of English and a modicum of integrity would ever make.

Minister Radebe is correct that section 15 instructs the NCACC not to sell arms to a government likely to use arms to suppress political unrest in that country and that it could not have been foreseen that the Libyan government would start massacring its own citizens this year. (After all, since the Libyan government was systematically suppressing the human rights of its citizens one would not have been able to predict that an uprising this year would have threatened the very existence of the regime and that the regime would have started to murder its citizens – regimes who deny their citizens basic human rights are often quite stable.)

But section 15 of the Act requires the NCACC to do far more than predicting whether arms would be used against the citizens of a country to whom we sell arms. The Act Requires that South Africa MUST avoid selling arms to a government that systematically suppress human rights — regardless of whether this will include the use of arms to murder their own citizens or not.

Now, there was no international arms embargo against Libya when South Africa sold that regime the arms under discussion. If the National Conventional Arms Control Act did not prohibit the government from selling arms to governments who are serial human rights abusers there would have been nothing illegal with the sale. But that is not currently the law in South Africa. The fact that the Minister can claim that our law states something that it clearly does not, is rather astonishing.

But I guess that is what happens if the political party one belongs to receive a large donation from a nasty, authoritarian and completely unhinged dictator: one sells arms to that dictator in flagrant violation of the laws one has passed oneself and then pretends that the law does not state what it actually does state.

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