South Africa serves divorce papers to the International Criminal Court (ICC), why now?

Some African heads of states will rejoice at the decision by Africa’s most powerful nation, South Africa (SA), submission of the Instrument of Withdrawal to the United Nations (UN) secretariat in New York on Thursday 20 October 2016. There are a number of African leaders who have possible criminal charges hanging over them. Two of the three current AU Vice Chairpersons, Robert Mugabe and Paul Kagame are controversial figures accused and suspected of possible crimes against humanity in their respective countries. So, as political tenures near and pressure mounts for those clinging to power to relinquish, this latest action by SA couldn’t have come at the right time. The ICC is the only body that could have ensured justice for the aggrieved in Africa. The African Union (AU) supported the establishment of Extraordinary African Chamber which recently conducted a trial of the former president of Chad Hissene Harbe’ for crimes against humanity. Although this was an initiative of the ICC, the AU has gained confidence from this experience, a court for Africans led by Africans. AU feels it has sufficient resources and know how henceforth to deal with its own legal challenges. However the challenge is that there is still widespread mistrust and lack of confidence in the AU. Subversions of democracy continue unabated in Africa, including the rising trend of manipulation of constitutions in order to amend and elongate presidential tenures, arrests and torture of opposition leaders and suppression of protests and freedom of the media.

There are certain very important factors that need to be considered as the world begins to digest what might be the end of International Criminal Court (ICC) in Africa. After the end of apartheid the new South Africa was very keen to be accepted by the international community. It was a critical moment in global politics with the Washington Consensus dictating the global socioeconomic agenda. SA desperate to establish trust and to lure foreign investment, endorsed and ratified a number of treaties. Later this hasty action came back to haunt the country, case in point SA’s commitment to the World Health Organisation’s (WHO) Public Health and Intellectual Rights. This prevented the production and distribution of generic drugs in South Africa at the time when there were high rates of people affected and living with HIV and AIDS. The ICC is not a very popular institution in Africa, for very obvious and legitimate reasons. It is regarded by many Africans as very selective in its application of justice, Africans have been targeted by the ICC whilst other leaders especially those from the West suspected and accused of human violations are spared. Furthermore the continued violations of human rights by countries like Israel continue to escape indictment by the ICC. There are many people around the world who feel that Tony Blair and George Bush should be tried for crimes against humanity in misleading the world about the weapons of mass destruction and for the war in Iraq. There have been more than enough petitions to the ICC in this regard. These are but few of instances which the African governments and indeed civil societies use to illustrate the selectiveness of the ICC.

SA is the leading member of the AU, the body was launched in SA and former President Mbeki was its inaugural chairperson in 2002. The decision to leave ICC is probably the most serious foreign policy decision SA has taken which resonates strongly in Africa, something that the beleaguered President Jacob Zuma desperately needs. SA’s leadership in this regard will further strengthen its influence within the AU. It will definitely elevate Zuma’s statue within the circle of his African peers. Which raises the question of the timing of this announcement. The pursuance of the withdrawal from the ICC by SA at this point is most likely to deligitimise this process irrespective of its merits. SA under Zuma is too controversial to be leading this process. Zuma is facing a string of accusations which might see most of his post presidential era spent in court. The SA Constitutional Court in March 2016 ruled that Zuma violated the constitution by refusing to pay back some of the millions of dollars in public funds spent on the improvements of his home. Zuma is increasingly seen as the president determined to undermine the rule of law in his favour. Notwithstanding the legitimacy and correctness of this latest move by SA, the timing will likely create anxiety and suspicion. Finally, the internal squabbles in SA involving the National Persecution Authority (NPA) and the Minister of Finance will exacerbate those concerns.

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