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.
A reader ask quite correctly what else President Thabo Mbeki could have done to make a difference to the Zimbabwean crisis. Supporters of the President (Khosi, you there?) and even staff I have spoken to who work in the President’s office have argued quite forcefully that it would not have helped for President Mbeki to criticise President Mugabe because that would merely have alienated him and would have diminished South Africa’s influence over the tyrant.
They also argue that the only way to get rid of Mugabe would be through a negotiated settlement because as we have seen he will not allow the MDC to govern Zimbabwe on its own and will most probably allow a coup rather than allow people he see as stooges of Britain to govern the country.
Of course we have to remember that the two previous elections were declared credible and mostly free by South African observers (following the Mbeki line), despite the fact that these were conducted in an atmosphere of fear and violence and according to electoral rules that clearly allowed for the massaging of the results in favour of Mugabe. This suggests that the Mbeki ANC would have done and said almost anything to ensure that Mugabe was not humiliated or criticised in any way.
Supporters of Mbeki would say that this strategy – while appearing to be callous and unprincipled – had actually finally paid off in 2008 because the mediation process led by our President has resulted in a more accommodating process and led to Mugabe making several concession which made the election less unfair. While not free and fair, the most recent elections therefore gave an opening to the opposition which allowed it to win the election.
There are at least two problems with these arguments.
First, South Africa is supposed to be a constitutional state based on the Rule of Law and a respect for human rights and the government police is supposedly to promote respect for human rights across Africa and to foster good governance in Africa through Nepad and the African Peer Review mechanism.
The failure of the government to forcefully criticise even the most flagrant human rights abuses and the stealing of two previous elections by Mugabe, suggests that South Africa is a silent or not so silent supporter of a tyrant and thus makes a mockery of the supposed leadership of our President and our country on human rights issues. This undermines our standing in the world and among right thinking people all across Africa. It is a matter of credibility: if one mollycoddles a tyrant it is hard to be taken seriously when making lofty statements about good governance and respect for human rights in other parts of Africa or the rest of the world (like in the USA or Iraq).
Our President has lost all credibility by holding hands with a person who has lost an election and now refuses to accept this reality and is using his military to terrorise the population who had the audacity to vote for the opposition.
Second, (and much worse) the South African governments’ silence (sold as quiet diplomacy) has actually helped to prop up Mugabe and thus helps him to stay in power. The apartheid government was an evil one – much like Mugabe – but gave up power after sustained attack by the international community and after being isolated by even its closest friends like the USA and the UK. South Africa could place serious diplomatic and economic pressure on Mugabe to change but has failed to do so. This makes our government complicit in the murder and torture of thousands of Zimbawean citizens and the ruining of the economy in that country.
Thus South Africa’s actions have helped to support a tyrant in power and have made it potentially more (not less) difficult to get rid of him. As long as President Mugabe thinks that South Africa is on his side and will silently go along with any action he might think necessary to stay in power, there will be no incentive to adhere to African Union principles.
If South Africa had spoke out and had actually threatened Mugabe with economic sanctions and (for him probably more important) with ostracisation in SADEC, South Africa might have been able to achieve more. Tyrants only act in their own self-interest and South Africa’s tacit support for Mugabe (because that is what quiet diplomacy really is) have sent a signal to Mugabe that it is not in his interest to go quietly.
What was and is needed is a carrot and stick method. Unfortunately, President Mbeki is all carrot and no stick. This make him (and by implication all who voted for him) complicit in the gross human rights abuses perpetrated by the Mugabe regime. I really do not know how hsleeps at night with this on his conscience. But then again, that assumes that he has a conscience.BACK TO TOP