On 19 October 2016 the South African government submitted its Instrument of Withdrawal to the United Nations Secretary General, stating that it had “the honour to notify that the government of the Republic of South Africa has decided to withdraw from the Rome Statute of the International Criminal Court”.
This is the latest legally questionable and deplorable instalment in what seems to be a string of legally questionable actions taken by the state since the unfortunate arrival of Sudanese President Omar al-Bashir in June 2015. Procedurally and substantively, serious concerns have been raised about the government’s conduct in this ongoing and bitter South Africa-ICC saga. By ANGELA MUDUKUTI.
South Africa, post 1994, was understood to be a nation that would prioritise human rights and justice. The nation signed and ratified the Rome Statute and took its commitment one step further by domesticating it, making it an integral part of the domestic legislative framework. The domestic legislation, the Implementation Act, has been an integral part of South African law since 2002 and all was well until the arrival of Bashir. This was ‘Part One’ of the saga. Bashir, who is wanted for genocide, war crimes and crimes against humanity arrived in June 2015 for the 25th African Union Summit despite the existence of local and international arrest warrants.
Bashir was not arrested on arrival and thus the Southern Africa Litigation Centre was forced to approach the courts on an urgent basis seeking the arrest of Bashir. Unfortunately, the state allowed Bashir to escape despite a court order issued to prevent his departure. The High Court and the Supreme Court of Appeal both ruled that failure to arrest Bashir was unlawful. Adamant that both courts had erred, and that another court would rule differently, the state persisted with the matter and took it on appeal to the Constitutional Court.
The matter is scheduled to be heard on 22 November, and yet on 21 October the next curious and questionable announcement from government hit the headlines, constituting ‘Part Two’ of the saga. Justice Minister Michael Masutha announced to the media that the state intends to withdraw the case. What is most interesting about such an announcement is that the state cannot unilaterally withdraw from a case. The Constitutional Court rules indicate that “[w]henever all parties, at any stage of the proceedings, lodge with the Registrar an agreement in writing that a case be withdrawn… the Registrar shall, if the Chief Justice so directs, enter such withdrawal, whereupon the Court shall no longer be seized of the matter”. By the time Minister Masutha made this announcement, none of the above procedures had been followed.
Now we find ourselves at ‘Part Three’ of the saga – the state’s attempt to withdraw from the Rome Statute. By announcing that the executive has the prerogative to effect withdrawal, the executive is attempting to sidestep parliament. This procedurally questionable move has received fully warranted outrage from civil society and parliamentarians. In order for South Africa to withdraw from the Rome Statute, the Implementation Act must be repealed first as it binds the nation to cooperate with the ICC.
To repeal this Act necessary parliamentary procedures must be followed including introducing a bill before Parliament, the organ vested with legislative authority in terms of the Constitution. Both houses of parliament are constitutionally bound in terms of section 59 and 72 respectively to “facilitate public involvement in the legislative and other processes” of the Council and Assembly. Even if it is said that the executive has acted in a manner that is procedurally correct, (which is doubtful) then the substance of its actions are still subject to the Constitution it must “uphold, defend and respect the Constitution as the supreme law of the Republic.”
Withdrawing from the only permanent International Criminal Court (imperfect as the Court may be) without consulting parliament or the people of this country hardly reflects actions that are reconcilable with the spirit, object and purport of the Constitution.The Constitution is designed to provide a solid foundation for a democratic and open society, yet the state continues to act in a way that jeopardises these important values. The will of the people, respect for human rights, an appreciation for justice and accountability are all missing from this disturbing turn of events.
The implications of withdrawing from the Rome Statute and repealing the Implementation Act are serious. Victims of international crimes will have no international access to justice and will find themselves before domestic courts that have no domestic framework governing the prosecution of these crimes, given that the Act could be obliterated. It is the ordinary citizens who will continue to pay the price for this brazen disregard for international criminal justice and human rights. This article appeared in the Daily Maverick of 24 October 2016
The Tshesebe-Mosojane-Masunga road estimated costs stand at P500 million, the tender which was awarded to Bash Carriers in 2017 has not taken shape four years after the project was commissioned.
Tshesebe-Mosojane-Masunga road when it was commissioned, was estimated at P500 million in value, this included construction of 22.50km of the two lane carriage way and 28.70km of access roads including associated bridge works, cross drainage works, storm water drainage works and relocation of services.
When it was first tendered the contract was awarded to Bash Couriers but was terminated after it was alleged that the contractor failed to deliver. It was said that Bash Couriers Construction Company was lagging behind schedule.
This publication visited the sites of Tshesebe-Masunga road last year December and it was evident that the project was at a standstill as deserted machinery on site could be seen with the gravel road also in a devastating state.
Information revealed then indicated that there had been issues of mining rights for aggregates, availability of structural engineers and manpower and a criteria for awarding tender to the specific company when the contract was terminated.
In 2016, as part of the ESP projects, government funded the 25 kilometres (Km) road project to link Tshesebe and Masunga.
Construction of the road, which also connects some of the villages within the district, commenced early in 2016 and was scheduled to be completed within 18 months.
The company had done nothing when their contract was terminated with allegations that it never had the capacity to carry out the project in the first place.
The major ESP project had ultimately robbed a lot of people potential employment when it succumbed to termination.
It was then that the government restarted the tendering process.
The project was awarded to Bango Trading Company and Zebra Construction in a joint venture at a value of P319 Million Pula.
However, information reaching this publication from the Ministry of Transport and Communications confirms that indeed there are no current works carried out on the Tshesebe Masunga road.
Responding to a questionnaire sent to them by this publication through their Public Relations Officer Doreen Moapare, the Ministry indicated that the Tshesebe-Masunga road project is before the courts therefore their response is limited by such a pending outcome.
“As a background the project had been awarded to Bash Carriers at a contract sum of P400, 044,365.68 to begin the works in May 2017 and complete the project in January 2019. Scopes of works included 51.2km main road inclusive of seven access roads. Due to non-performance, Bash Carriers contract was terminated on the 25th of September 2018. ”
Further, Moapare indicated that upon termination of Bash Carriers, a process began to ensure that the development project completes.
Five companies went for a selective tendering bid which she listed as; Lobkom Investments (Pty) Ltd, Landmark (Pty) Ltd and Truck Hire (Pty) Ltd Joint venture, ACE /Excavator Hire (Pty) Ltd and Asphalt Botswana (Pty) Ltd Joint venture, Cul De Sac, Bango Trading and Zebra Construction Joint venture.
“Some companies have since queried the results of the tendering adjudication landing the issue in the courts. We are currently awaiting a ruling expected in February/March 2021, and this will determine the course of action thereafter,” concluded Moapare.
At one point last year, reports indicated that Bango Trading Construction Company had faced raiding by the Directorate on Intelligence and Security, Botswana Police and Botswana Unified Revenue Services, with allegations that there was an emerging pattern targeting overscheduled construction companies with powerful political connections.
Bango Trading Managing Director, Moffat James, was reported to have had close links to former DIS Director Isaac Seabelo Kgosi. Bango Trading and Estate Construction Company which has obtained close to P 1, 5 billion government contracts under former President Lt Gen Ian Khama has been the subject of a parliamentary probe due to the many government contracts awarded to them.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.