As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The Zimbabwean citizens reportedly detained by the Hawks and members of the SA National Defence Force and handed over to Zimbabwean Police, who then allegedly murdered the “deportees”, seem to have little in common with Mr Khalfan Khamis Mohamed, a Tanzanian man convicted of terrorism in a New York Court in 2001.
Yet, as Minister Jeff Radebe pointed out this weekend in the Sunday Times, the precedent set by the Constitutional Court in the Mohamed case makes it illegal for the Hawks and the SANDF knowingly to send people to their possible death – even if the immigration law had been followed, which allegedly was not done in these rendition cases to Zimbabwe. A paper trail was published in the Sunday Times, confirming that a number of individuals were arrested as “illegal immigrants” by the Hawks and taken over the border at Beit Bridge, where they were handed to Zimbabwean police, and then killed.
In a move that is said to put him on a collision course with his cabinet colleague Nathi Mthethwa, the Minister of Police, Minister Radebe said the renditions “fly in the face of our constitution and its values”. Radebe said the rendition claims were “very worrying” – particularly as the allegations “were levelled not only against organs of state, but ones responsible for law enforcement and security”.
The actions flout the Immigration Act and also breach a government moratorium on deportations to Zimbabwe and the United Nations Convention Against Torture, which South Africa ratified in 1998. However, Mthethwa on Friday told the Sunday Times “there is nothing in front of [me]” to warrant an investigation. He said the rendition claims involving the Hawks were “baseless and imaginative”. It would not be the first time that the political leadership of Police turn a blind eye to unlawful and unconstitutional actions of members of the law enforcement agencies.
After all, there is often a huge gap between the legal and constitutional protections afforded individuals in South Africa and how individuals are actually treated in real life. While the Constitution prohibits unfair discrimination against anybody because of his or her race, against women and against gay men and lesbians and while the Equality Act similarly prohibits private institutions and individuals from discriminating, discrimination is still rife – also inside the Police Service and in the way it deals with complaints.
Over the years I have fielded several calls from young men and women who had been raped and then tried to get the police to investigate these crimes. In each case the complainant was not successful in getting the Police interested in his or her case – and the only reason for this was that the rape survivors happened to be gay or lesbian. In one case I was told that a Police officer from Atlantis had laughed at a young man who wanted to report a rape because he was “‘n moffie” and hence deserved to be raped. I have also had long and fruitless arguments with members of the Harare police station in Khayelitsha to try and get them to investigate the rape of a lesbianwoman by a man known to the rape victim and the police.
It appears that the position of undocumented Zimbabweans in South Africa is often no different, something that Minister Radebe – to his credit – seems very concerned about. It may be helpful to remind the law enforcement officials in South Africa that apart from the Immigration Act (which they are supposedly bound by) the Constitution itself makes this kind of thing unlawful.
It was an early spring day in Cape Town back in 1999 when South African government agents illegally handed Mr Mohamed over to agents of the FBI. The agents rushed Mr Mohammed onto a FBI aeroplane and the next day he was brought before the Federal District Court in New York on charges relating to the horrific bombings of the US embassy in Dar es Salaam the previous year. Mr Mohammed faced the death penalty if convicted of the charges brought against him.
While his trial was proceeding in New York, his lawyers approached the South African Constitutional Court, who declared that his handing over to US agents had been unlawful, in part because the South African government had handed him over to the US without a guarantee that he would not face the death penalty if convicted in the US.
The Constitutional Court pointed out that our Constitution outlaws the death penalty and found that the South African government had acted contrary to the underlying values of the Constitution. Although it had a duty to protect the right to life and the right against cruel inhuman and degrading treatment and punishment of everyone in South Africa, it had failed “to lead by example” in this case.
According to the Court, this unlawful action was particularly serious because the government had a special duty in our young democracy to foster the values entrenched in the Constitution.
In Mr Mohamed’s case, the US Federal Court found that it was not bound the judgement of the South African Constitutional Court. After all, the judge pointed out, the United States was a sovereign state and a South African Court could not order a US court how it should deal with its accused. Although Mr Mohamed was eventually sentenced to life imprisonment, this was only because of a technicality which allowed the South African judgment to be tendered as mitigating evidence. But this does not mean that the South African can “render” suspects to a foreign government if they might be tortured or killed. They cannot.
Even if the Immigration Act is followed to the letter (which it seldom is), South Africa is therefore constitutionally prohibited from sending any Zimbabwean who is illegally in South Africa and is suspected of committing a very serious crime back to Zimbabwe if there is any well-founded fear that the Zimbabwean government or its formal or informal agents will murder or torture the suspect. I suspect that this is why these renditions occur without following the requirements of the Immigration Act.
Ordinary South Africans, whose views might sometimes be clouded by more than a tinge of xenophobia might think that this has nothing to do with them. But if we allow our law enforcement agencies to continue to act in such a lawless manner when dealing with Zimbabweans, cases where they deal with South African citizens in a lawless manner will also increase. As things stand, many of us who used to fear and loath the South African Police Force during the apartheid years but gave them a chance when they were supposedly turned in to a Police Service who was tasked with protecting and not terrorising the population, are having second thoughts.
In my dealings with the police I have been shocked by the attitude of some (but not yet all) police officers. Once I was asked the most racist questions by a police officer who seemed to assume that all black people are by definition criminally inclined. On another occasion there was an attempt to extract money from me, something, I am told, that is quite common in some parts of South Africa. While some police officers have dealt with me in a helpful and professional manner, others have made my hair stand on end with the prejudices and their lack of respect for the basic provisions of the law or the Constitution. I could only surmise that they were not taught much about respect for human rights or if they had, they had not internalsied those lessons.
Maybe Minister Radebe should raise this issue in the cabinet in order to ensure that cabinet instructs the Minister of Police to implement measures that would try and instill a human rights culture in the Police. When ordinary citizens fear, instead of trust, the Police, they will not co-operate with the Police. And if there is no co-operation the Police will not be able to do their job properly.BACK TO TOP