Universal Jurisdiction News

This report by the Southern Africa Litigation Centre demonstrates how civil society actors across the African continent have, through different initiatives, successfully intervened to secure domestic realisation of international criminal justice. The report reiterates the primary responsibility to investigate and prosecute international crimes at the national level, and urges African civil society to further engage in the fight against impunity.

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Universal Jurisdiction News

Judicial review proceedings are ongoing against a decision by the South African Department of Home Affairs to grant asylum to former Rwandan army general and suspected war criminal, Faustin Kayumba Nyamwasa. Among other allegations, in February 2008 Nyamwasa was indicted by a Spanish judge for war crimes allegedly committed while he was in command of Rwandan Patriotic Army (RPA) troops in the Democratic Republic of Congo. In June 2011, Nyamwasa survived an apparent assassination attempt while in Johannesburg and was shortly afterwards granted refugee status in South Africa.

The Consortium for Refugees and Migrants in South Africa (CoRMSA) and the South African Litigation Centre launched judicial review proceedings in 2012 in relation to the asylum decision, and hearings took place on 17 May 2013 at South Gauteng High Court. Lawyers for the Department of Home Affairs submitted that they had been aware of the allegations against Nyamwasa and had made an informed decision based on that information; however, they also submitted that the information used in making that decision could not be disclosed. CoRMSA, for its part, argued that persons suspected of committing international crimes should be excluded from the benefits of aslyum. Judge Nomonde Mngqibisa-Thusi reserved judgment.

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What was supposed to be the coming-out party for the new Zimbabwean Constitution risks becoming just another illegitimate election. Holding the election on July 31st, though in keeping with the Constitutional Court’s ruling, is against both the letter and the spirit of Zimbabwe’s new Constitution. The widely-criticized Constitutional Court judgment mandated a deadline that ensures that qualitative provisions cannot be complied with, and President Mugabe happily – and unilaterally – declared that the elections would be held on 31 July.

A special Zimbabwe themed meeting of Southern Africa Development Community (SADC) heads of state will take place on 15 June and it is hoped SADC will decide not to provide technical, financial, logistical and/or moral support for the holding of Zimbabwe’s elections on 31 July 2013. Although it seems little can be done to change Mugabe’s mind.

By setting a date for the elections the Constitutional Court has greatly diminished Zimbabwe’s ability to hold free, fair and credible elections. Further, President Robert Mugabe’s unilateral proclamation of 31 July 2013 for Zimbabwe’s election date constitutes a gross abuse of power. His actions are  inconsistent with the Global Political Agreement (GPA), article 11 of which requires that all parties to the GPA are to “respect and uphold the Constitution and other laws of the land” and “adhere to the principles of the Rule of Law.” President Mugabe’s conduct also offends Zimbabwe’s new Constitution, Schedule Six of which requires that Zimbabwe’s “first elections” be conducted under the new Constitution.

Having played a crucial role in the brokering of the GPA and through its oversight of Zimbabwe’s constitutional process, SADC must ensure that Zimbabwe does not jeopardise the democratic quality of its first elections and the integrity of Zimbabwe’s new Constitution.

SADC must appreciate that, contrary to the findings of the Constitutional Court, it is Zimbabwe’s new Constitution that explicitly provides for the holding of Zimbabwe’s elections. Elections must therefore be carried out in terms of the transitional provisions of the new Constitution which are contained in the Sixth Schedule. The Sixth Schedule neither stipulates a date on which elections must be held, nor requires that a date for elections is to be determined in terms of Zimbabwe’s outgoing Constitution. Rather, the only condition imposed in terms of the Sixth Schedule is that “first elections” must be carried out in terms of an “Electoral Law in conformity” with the new Constitution.  It is Zimbabwe’s readiness that must guide the decision as to when elections should be held. The Sixth Schedule is concerned not about the timing of the elections but about constitutional compliance, which, once met, will allow an election date to be set.  

For Zimbabwe to hold constitutionally compliant elections, the Electoral Act as well as other laws and regulations related to the elections must be amended so that they are in compliance with new Constitution. Additionally, voter registration needs to be completed. These are legal and constitutional requirements that are subject to time and content-specific procedures, which make 31 July 2013, constitutionally and practically impossible.  In terms of section 11(1) of the Sixth Schedule, any decision of the President must be in accordance with the new Constitution. President Mugabe’s government has attempted to fast-track these processes and in doing so has acted unconstitutionally, and is now the subject of a constitutional challenge.

SADC itself recognises in its Principles and Guidelines Governing Democratic Elections that SADC member states must create an electoral environment conducive to (i) Full participation of all citizens in the political process; (ii) Freedom of association; (iii) Political tolerance; (iv) Equal opportunity for all political parties to access the state media; and (v) Equal opportunity to exercise the right to vote and be voted for. Zimbabwe’s new Constitution provides the legal parameters in which these prerequisites are met, but only if strictly adhered to by the Zimbabwean Government. 

SADC must therefore condition its support for Zimbabwe’s elections on Zimbabwe’s full compliance with the GPA and the implementation of constitutionally mandated reforms to Zimbabwe’s electoral law and that the processes therein be conducted in accordance with Zimbabwe’s new Constitution. The Constitutional imperative of “free and fair” elections must guide SADC’s deliberations and recommendations in this regard. 

Credible elections are at the heart of any constitutional democracy’s legitimacy. Elections are an essential component of the rule of law, if not its foundation. If SADC fails to intervene and permits Zimbabwe to hold elections that are inconsistent with Zimbabwe’s Constitution, that failure will render SADC complicit in an unconstitutional state of affairs that SADC has thus far sought to avoid.

SADC has a duty to the Zimbabwean people to ensure that Zimbabwe’s first elections are carried out in accordance with the constitutional guarantees contained in the new Constitution and GPA, as well as SADC’s own Principles and Guidelines. This is unlikely if elections are held on 31 July. SADC risks bringing its own credibility into question if it endorses a process that is legally, practically, logistically and constitutionally flawed, jeopardising the progress made since the conclusion of the GPA and the regional bloc’s commitment to democracy.

PILG 2013 is organised by the Centre for Applied Legal Studies (CALS), Lawyers for Human Rights (LHR), the Legal Resources Centre (LRC), ProBono.Org, Section27, the Socio-Economic Rights Institute of South Africa (SERI), the Southern Africa Litigation Centre (SALC), Students for Law and Social Justice (SLSJ) and the University of the Witwatersrand, School of Law.

Some of the topics to be explored will include:

• Access to Urban Housing, Evictions and Current Strategies;
• Extractive Industries:  Advocacy and Litigation;
• Judicial Oversight of Administrative and Pre-Trial Detention;
• Using Regional and International Law and Courts;
• Schools, Sexual Harassment and Sexual Violence; and
• The Legal Practice Bill:  Community Service, Pro Bono, Access to Justice and the Ethics of Representation

For more information and registration information visit the PILG website

On 22 May 2013 President Robert Mugabe assented to Zimbabwe’s New Constitution, signing it into law. The new Constitution brought Zimbabwe’s much anticipated general elections one step closer, paving the way for preparations to be made. However, just a week later, and catching many off guard, the final step was quickly taken by the new Constitutional Court when it, in its first judgment, ordered President Robert Mugabe’s government to hold Zimbabwe’s elections by 31 July 2013.

President Mugabe, who has coincidentally been pushing for early elections, did not oppose the case and announced that he will abide by the decision. Conveniently invoking his adherence to the rule of law, he has found himself with no choice but to comply with the judgment. Prime Minister and MDC leader, Morgan Tsvangirai, believes that the Court over stepped its mandate and that it cannot dictate when the election is to be held, and he is looking for ways to challenge the decision, even hinting at boycotting the elections if they are held before 31 July 2013.

In the wake of the judgment a number questions are on everybody’s minds:

• Is Zimbabwe financially and logistically ready to hold free and fair elections in less than two months?

• Will the mandated constitutional safeguards and reforms be in place in time to ensure that the elections are free, fair and constitutionally compliant?

• Is the legal reasoning of the majority or the minority correct?

But are these the right questions? Perhaps the question that needs answering is whether the Constitutional Court used the right Constitution.

The analysis appears below, or you can download it here.

The Case

Zimbabwean activist Jealousy Mbizvo Mawarire, who brought the case, argued, under the old Constitution, that the failure to fix a date for the elections, before the expiry of Parliament’s five year term on 29 June 2013, would result in Zimbabwe being governed unconstitutionally without a Parliament for up to four months. He contended that such a “situation would be a crippling negation of a fundamental tenet of [Zimbabwe’s] democracy which is a sine qua non of [Zimbabwe’s] constitutional order” and would breach his 1980 constitutional rights.

The Court was therefore asked to pronounce on the constitutionally required timing for the holding of a general election following the dissolution of Parliament. Under Zimbabwe’s outgoing 1980 Constitution, this is governed by subsection 58(1), read with subsections 63(4) and 63(7) (the election provisions).  In terms of these provisions, the dissolution of parliament can take place in one of two ways: either pursuant to a proclamation by the President; or after the expiry of its constitutionally stipulated five year term. These provisions allow elections to be called within four months of the dissolution of parliament. 

The judgments, of which there are three (the majority by Chief Justice Chidyausiku and two dissents by Deputy Chief Justice Malaba and Justice Patel) focused primarily on the old Constitution’s election provisions.

The Chief Justice embarked on an extensive interpretative endeavor, correctly identifying (although the same cannot be said about his application – see Derek Matzyak’s analysis in this regard) established canons of statutory interpretation, a host of jurisprudence. He ultimately found himself guided by his own version of the principle of constitutionalism and judicial respect for the separation of powers. Finding that the plain reading of the election provisions would permit Zimbabwe to function without a Parliament for four months the Chief Justice reasoned that to “exist too long without a Parliament would be tantamount to shredding the Constitution and inviting a state of lawlessness and disorder.” He ordered, with six other judges in concurrence, that the election provisions cannot be interpreted in a manner that would leave Zimbabwe without its Parliament, and set the controversial election date.

Justices Malaba and Patel, also sticking largely to the old Constitution, found that the election provisions provide that elections must be called within four months after the dissolution of Parliament, and that such situation is not uncommon in other countries. From an interpretational point of view their constructions of the election provisions are at least more palatable, reflecting the golden rule of statutory interpretation which stipulates that words must be given their plain and ordinary meaning. They found that elections could be held on 29 October 2013, giving the country much needed time to prepare.

The minority’s interpretation is also consistent with provisions in the new Constitution which permits Zimbabwe to function without a sitting Parliament for up to 90 days after the dissolution of Parliament. On the majority’s reasoning however the new Constitution would be unconstitutional.

Out with Old, in with the New

Between the case being filed on 15 May 2013 and judgment handed down on 30 May 2013 Zimbabwe’s new Constitution came into operation on 22 May 2013. The judges must have been aware, as they heard argument and wrote their judgments, that the passing of the new Constitution was imminent. The coming into force of the new Constitution, and specifically the transitional arrangements in the Sixth Schedule, should have received more attention from the Court.

Where significant legislative changes occur, transitional arrangements are put in place. In the new Zimbabwean Constitution, the Sixth Schedule governs the commencement of the new Constitution and puts in place transitional measures to ensure the smooth transition from the old Constitution to the new. The Sixth Schedule specifies which provisions of the new Constitution come into force and when.

The Sixth Schedule before and after Mugabe’s Signature

It should be pointed out that the Sixth Schedule in the version of the new Constitution that was voted on in the March 2013 referendum and the Schedule’s wording in the final Constitution changed at some point. Specifically, section 3 of the Sixth Schedule, which stipulates which provisions come into operation on publication day (the day the new Constitution was signed by the President), was amended. At first glance these amendments may appear minor however, without the amendments Jealousy Mawarire’s case might not have been possible. These changes are underlined:

The signing of the final Constitution brought chapter 8 into operation. However, if the text of draft Constitution’s Sixth Schedule had been approved, and amendments listed above had not been made,  the Constitutional Court would only have become operative after the elections, and would therefore not have been in existence at the time this case was launched. Section 3(1)(d) of the final Constitution was also amended to suspend the coming into operation of section 158 of the Constitution,  which governs the timing of the elections. The judges of the Court interpreted the exclusion of section 158 from the provisions that came into force immediately to permit them to consider and apply the timing provisions in the old Constitution.

The fact that Mawarire could not have launched the legal proceedings without these amendments could be a convenient coincidence or may, as some media reports suggest, be slightly more sinister. However, although such a possibility does not require any great stretch of the imagination, speculating about the possibility of political puppetry having a hand in this case is a waste of time, and ultimately unnecessary. 

Which Provisions and When? The Sixth Schedule

As a result of the transitional arrangements the new Constitution does not come into operation in its entirety immediately, and so two operational dates are defined. First is the “publication day” which is the day on which the new Constitution was published in the Government Gazette – 22 May 2013. The second is the “effective date” which is the day on which the president elected in the first elections assumes office. The “first elections” are the first elections held under the new Constitution and are dealt with in Part 3 of the Schedule, which provides that “the first elections must be conducted in terms of an Electoral Law in conformity with this Constitution”.

In respect of which provisions came into force, section 3(1)(a) – (j) of the Sixth Schedule brought the Schedule into operation on 22 May 2013 and a number of chapters of the new Constitution, including chapter 4, the declaration of rights; chapter 6, which regulates parliament; chapter 7 which deals with elections, barring sections 158, 160 and 161; and chapter 12 which covers the Zimbabwean Electoral Commission. Section 3(2) provides that the remainder of the Constitution comes into operation after the first elections – the effective date.

The only judge to make reference to the Sixth Schedule was Justice Malaba. Referring to the Sixth Schedule’s stipulation that section 158 is not yet in operation the judge found that:

“Reference to s 158(1)(a) of the New Constitution is inappropriate. Section 158(1) provides that ‘a general election must be held so that polling takes place not more than thirty days before the expiry of the five-year period specified in s 143’. Section 158(1) cannot be used to support the applicant’s contention … Section 3 (1)(e) of Part 2 of the Sixth Schedule to the New Constitution makes it clear that s 158 does not come into operation on the publication day.

Malaba was of the opinion that:

“In suspending the coming into operation of s 158 the framers of the New Constitution were aware of the provisions of s 58(1) of the former Constitution. They were aware of the clear conflict between the position provided for under s 58(1) and that enacted by s 158(1)(a) of the New Constitution.”

If the drafters were aware of potential conflicts between the old and new Constitution, as alluded to by Malaba, that they went through the new Constitution suspending conflicting provisions in the final hour, surely the drafters would have suspended other conflicting provisions such as those that provide for the dissolution of Parliament in Chapter 6 of the new Constitution.

Section 3(1)(d) of the Sixth Schedule provides that “Chapter 6, relating to the election of Members of Parliament, the summoning of Parliament after a general election and to the assent to Acts of Parliament by the President” comes into force on publication day. Section 3(1)(d) does not except specific provisions in the same manner that section 158 was excluded in section 3(1)(e) despite the interrelationship between section 158 and some of the provisions in Chapter 6. The wording of section 3 is somewhat vague and it is difficult to ascertain how much of Chapter 6 is in force. For example, would section 143 of the new Constitution, which provides for the dissolution of parliament, and  section 144, which provides for the timing of elections after the dissolution of Parliament, be considered to be in force? Both are in Chapter 6 and could be understood to relate to “election of members of Parliament”. Or does the cross reference to the inoperative section 158 in section 143 of the new Constitution render it inoperative by implication?  

This question is important because section 3(3) of the Sixth Schedule reads: “Between the publication day [22 May 2013] and the effective date, the provisions of this [new] Constitution specified in subparagraphs [3(1)(a)-(j)] … override the equivalent provisions of the Former Constitution”. This raises the question of whether the Sixth Schedule warranted more of the Court’s attention in order to determine the proper role of the Sixth Schedule. The election provisions relied on in the old Constitution do have “equivalent provisions” in the new Constitution which may, in terms of section 3(1) of the Sixth Schedule, already be in force and override those in the old Constitution.

Similarly the applicant relied on the old declaration of rights which has been replaced by the new Constitution, and this aspect is not touched on by the judgments.

The “first elections”

Malaba notes that “Section 1 of Part 1 of the Sixth Schedule provides that the “first elections” should be held in terms of the New Constitution. In fact s 8 of Part 3 of the Sixth Schedule specifically provides that the “first elections” must be conducted in terms of an Electoral Law in conformity with this Constitution.

The “first elections” are defined:

“(a) the first election for the office of President under this Constitution;

(b) the first general election of Members of Parliament under this Constitution; and

(c) the first elections of governing bodies of provincial and metropolitan councils and

local authorities;

held after the publication day”

Does the the Sixth Schedule’s explicit reference to Zimbabwe’s “first elections” accord a special status to these elections? Should the “first elections” be determined under Constitutional provisions which were drafted to provide generally for elections, under Zimbabwe’s old Constitutional order, that come about through the ordinary course of events (dissolution, passage of time etc.) as opposed to the very unique, and what can hardly be described as ordinary, process that has laid the foundations for Zimbabwe’s “first elections”?

The “first elections” must be considered to be different as they represent the culmination of Zimbabwe’s constitution making process. Specifically providing for the “first elections” demonstrates the importance of these elections, the holding of which has been conditioned on the coming into force of the new Constitution. It is recognition on the part of the drafters and the Zimbabwean people that the “first elections” under the new Constitution will greatly influence Zimbabwe’s future, and must be handled with care.

Malaba makes a valuable finding in this regard:

“[E]lections are crucial to democracy. This is particularly so at this stage of the history of our country. The first elections which are due to be held under the New Constitution are bound to test the readiness of Zimbabweans to embrace the change embodied in the New Constitution … Choosing the precise date to hold the first elections is therefore a matter of utmost importance to be handled with greatest care.”

His position, which perhaps best embraces the notion of constitutionalism, was that in deciding on a date for the elections the Court and Executive must ensure the “democratic quality of the first elections”, an accepted constitutional imperative. If rushed, this quality risks dilution.

It is therefore significant that a date is not prescribed in the Schedule. This would be the most logical place to put it. Where better to prescribe a date for the “first elections” than in the transitional provision of the new Constitution that deals exclusively with the “first elections”? If the intention of the drafters was to subject the “first elections” to time frames why was this not stipulated in the Sixth Schedule? A plain reading of the Sixth Schedule appears to condition an “first elections” on the completion of identifiable processes (which have timing requirements of their own) and not to equate the “first elections” with elections generally and their timing. 

The Sixth Schedule makes a number of references to the fact that the first elections must be held under the new Constitution, and specifically those provisions that came into operation on 22 May 2013 – none of which stipulate a specific date. The drafters, in deciding not to subject the “first elections” to the time constraints in section 158 of the new Constitution, did not necessarily intend, as reasoned by the Constitutional Court, that the timing of the “first elections” was to be determined under the old Constitution. A more constitutionally appropriate approach is that elections should be held when Zimbabwe has completed a host of constitutionally required tasks.

Zimbabwe’s Election To-do List

As to when elections should be held, this decision is one that should have been guided by Zimbabwe’s readiness. The Sixth Schedule is concerned not about the timing but constitutional compliance, which once met will allow a date to be set.  

A number of analysts have already pointed that in order for Zimbabwe to legally hold elections a number of things have to be done, the most important of which is the amendment of Zimbabwe’s Electoral Act to bring it in line with the provisions of the new Constitution. Percy Makombe notes that “the Electoral Act as well as other laws and regulations related to the elections must be amended so that they are in compliance with new Constitution”. Unfortunately, in failing to consider other constitutional requirements the judges did not sufficiently engage with the new Constitution and its requirements which Makombe believes “make the July 31 deadline an impossibility.” Additionally, as Derek Matzyak highlights, because the Electoral Act cannot be amended once an election date is announced, all the necessary amendments to the relevant laws must be made and sufficient resources and logistical arrangements must be in place before the announcement of a date. Another aspect of that the Sixth Schedule that was not considered was its requirement of a minimum of 30 days for voter registration and inspection of the voters roll.

When imposing these requirements the drafters must have appreciated the fact that these are legal processes and are subject to the Constitution and that the nature of these tasks creates their own time constraints.  Consequently to require the first elections to be held by a specific date could not have been the intention of drafters. Common sense and constitutionalism suggests that they must have envisioned elections being held only on the completion of these constitutional tasks; the timing of which is impossible to predict. Makombe believes the unlikelihood of these tasks being completed in the time available means that the “only way that 31 July deadline can be met is through violating the Constitution.”

Implications of the Decision

Why the Court did not consider the constitutional implications of their decision is perplexing to say the least and to borrow from the words of Chief Justice Chidyausiku, “the mind boggles”.

It could be argued that the application of the same principles of interpretation used by the Chief Justice, would actually result in a conclusion that the judges should have declined to hear this case, or at the very least should have heard this case under the new Constitution (in terms of the Sixth Schedule).

As this case has demonstrated it is all too easy to get lost in interpretation. When interpreting the Constitution most courts ultimately adopt a purposive and contextual approach to best give effect to the purpose, objects and values of the Constitution. Drawing on the spirit of constitutionalism, the judges of the Constitutional Court should have proceeded to decide this case in a manner that would haven give effect to the new Constitution, not potentially frustrate it. 

The Constitutional Court is not only tasked with defining what is constitutional but it must also make decisions that ensure conformity to and advancement of the principles and values underpinning constitutionalism. Constitutionalism, at its most basic, requires upholding the values of society, which includes free and fair elections. As Shadrack Gutto notes:

 “[C]onstitutionalism” is a broader concept than the text of a constitution. Constitutionalism is both the “letter and spirit” of a constitution. In other words, constitutionalism is about fidelity to the letter of the constitution and the core values and principles upon which a constitution is based. The spirit of a constitution is expressed in, amongst others manifest deeds, policies, laws, regulations and the manner of their implementation or practical realisation.

Constitutionalism is about constitutions in practice and not only in form or in theory …

At another level, the practice of constitutionalism also implies the degree to which constitutions and their implementation address the real social needs of society. Here lies the imperative of interpreting constitutionalism from the perspective of human rights.

The existence of a new Constitution does not necessarily mean that Zimbabwe has embraced constitutionalism – constitutionality and constitutionalism are not necessarily synonymous – and the decision of the Constitutional Court, by potentially jeopardising the democratic quality of Zimbabwe’s first elections, has fallen short in this regard.

Although this judgment is not appealable and is likely to stand, especially in light of Mugabe’s backing, but the failure of Mugabe’s government to ensure preparations are conducted in accordance with the Constitution may see the Constitutional Court hearing more legal challenges, causing further delays. It is also a possibility that if the elections are not held by 31 July 2013, Mugabe may find himself in contempt of court.

Free and Fair Elections

Whilst one can appreciate that the delay in having elections perpetuates the state of limbo Zimbabwe finds itself in and that this must be frustrating for Zimbabweans, rushed elections are not the solution. It is perhaps this frustration that prompted Zimbabwean legal scholar Lovemore Mudhuku to come out in support of this judgment and to say that he “would rather [Zimbabwe] have flawed elections than no elections at all.” But this ignores the very purpose of elections and their rationale and the fact that credible elections are at the heart of any constitutional democracy’s legitimacy. Elections are an essential component of the rule of law, if not its foundation. To focus solely on the act of elections, ignoring the need for electoral safeguards and constitutionally required reforms is not conducive to the creation of an environment in which elections can be free and fair. 

Free and fair elections do not begin and end with a simple checklist of administrative tasks and performance. An inherent feature of free and fair elections is that they are conditional on the political will to address issues such as funding, media access, media coverage, election monitors and oversight by an independent, impartial and competent electoral commission. Susan Rice in The Riddle of All Constitutions observed that “flawed” elections may produce what she calls a “low intensity democracy” and that although they “generate governments” these governments are likely to be fragile and simply unable “to redress fundamental political and economic problems”. The risk in Zimbabwe is a repeat of the 2008 elections and the aftermath that followed.

The first judgment of the Constitutional Court has very serious legal, practical and logistical implications. Legally, the decision is potentially bad in law. Practically and logistically Zimbabwe may not be ready by July, rendering the elections susceptible to abuse. Even if the judges were simply applying the law, the judges have defended the constitutionality of a decision that may have unconstitutional results, contrary to the spirit of constitutionalism. This is exactly the situation that Constitutions, and Constitutional Courts, should seek to prevent. If the Constitutional Court is to be seen as the guardian of the Constitution, the Court is not off to a good start and its first judgment does little to inspire confidence

If Jealousy Mwarire was concerned that that the failure to announce an election date violates his constitutional rights, perhaps he should be more concerned about the impact unconstitutional elections will have not only on his rights, but the rights of all Zimbabweans. By effectively derailing the constitutional process, his decision to launch this case has done far more harm than good and renders him partially responsible for the repercussions that might follow this ruling.

The media interest in the case has been overwhelming, and many newspapers have printed elaborate stories about the two men, ranging from them being engaged to them having been found “in the act”. These stories are quite different from those related by the prosecution’s own witnesses. The Magistrate warned journalists about false reporting after defence showed a report in the media which appeared the previous day.

On 10 June the prosecution called its first witness, the complainant and a sister of one of the accused. Her testimony did not show any cause for the charges against the two accused. The second witness, a neighbour, was also vague and added nothing to the prosecution’s case. These witnesses mentioned that, when the accused were arrested and taken to the police station, one of them was examined by the police to determine his sex. A police officer who testified for the prosecution today denied such examination.The arresting police officer admitted that proper procedures for dealing with arrested persons were not followed when the accused were brought to the police station. A confession that the police officer wanted to produce as evidence was voluntarily retracted by the prosecution. The fourth prosecution witness was a man from the community who testified about the circumstances surrounding the arrest of the two accused, who were in a bar at the time. The witness admitted that he had only been briefed by the prosecution a day earlier and his evidence also did not contribute anything to the prosecution’s argument.

The trial will continue on 25 June and 18 and 19 July 2013 in the Kapiri Mposhi Magistrates Court. The accused are represented by Sunday Nkonde SC from SBN Legal Practitioners and supported by SALC and Friends of Rainka.

Any new information on the case will be posted on this website.

Nicole Fritz

11 June 2013, BD live

SPARE a thought for African Union (AU) chairwoman Nkosazana Dlamini-Zuma and International Criminal Court (ICC) prosecutor Fatou Bensouda. Each has been tasked with providing leadership to prominent, if vulnerable, international bodies and will be judged on their records of leading their respective institutions to robust health.

They are tasked at a time when female global leadership remains a rare phenomenon and African female leadership at the global level is rarer still.

Ironically, each of them faces the risk of sabotage by the macho grandstanding of her peers.

Take Bensouda. She is having to manage a docket of cases shaped, it often seems, by her predecessor Luis Moreno Ocampo’s desire to be a Hollywood-style hero — revered by hapless victims, reviled by murderous tyrants; unperturbed that the law often takes more nuanced turns.

Bensouda must now contend with the fallout. Last week, judges at the ICC said prosecutors must better provide stronger evidence against former Côte d’Ivoire president Laurent Gbagbo if the case against him is to proceed.

This follows the ICC’s acquittal late last year, of Congolese warlord Mathieu Ngudjolo Chui on the basis of an insufficiently solid case and the decision, this March, of Bensouda’s own office to withdraw evidence against a Kenyan accused for lack of evidence.

These developments hardly do justice to an institution charged with handling cases of the world’s worst crimes.

Over at the AU, Dlamini-Zuma is not having any easier a time. African heads of state, indignant at an unresponsive United Nations Security Council and swelled with bravado at the “Ascendant Africa” refrain, left the likes of French President Francois Hollande to address empty conference venues and US Secretary of State John Kerry to have to cancel his address at the recent AU summit celebrating the 50th anniversary of its earlier incarnation, the Organisation of African Unity.

Also at the summit, there was the now standard gauntlet throw-down with the ICC — the issuing of an official communique calling for an end to the ICC’s indictments of recently elected Kenyan President Uhuru Kenyatta and his deputy, William Ruto.

As things stand, both institutions are likely to emerge from the Kenyan indictment saga weakened — shown only to be ineffective, blustery bodies.

In publicly calling for the removal of the indictments, the AU offers the ICC no space to flinch.

To capitulate would destroy the ICC’s independence, revealing it to be craven and easy prey for bullies. The only response the AU’s call thus invites is a non-response.

Still, it is hard to imagine how the indictments can proceed. At present, Kenyatta and Ruto have indicated that they will co-operate with the ICC.

But that co-operation, if indictments persist, is sure to run out.

In that event, no country — not just the club of African states — will surrender Kenyatta or Ruto to the ICC, so thwarting any realistic prospect of prosecution.

Countries would fear being seen to thumb their noses at the Kenyans who, in spite of the indictments, democratically elected Kenyatta and Ruto to office.

The ICC would be left only to huff and puff on the side lines, shown to be empty of any real power.

So how to go forward?

Liberated from all this brawny posturing, Bensouda and Dlamini-Zuma might retire to a meeting room, far from the public and their peers’ glare, and candidly disclose the impossibilities of their respective institutional positions.

Dlamini-Zuma might offer a less combative, confrontational engagement going forward and Bensouda might indicate that her office is considering withdrawing charges against the Kenyan statesmen for the time being.

For a multitude of reasons, not least the obligations owed by both institutions to the victims of mass violence, this would be a very far from perfect agreement.

But for the long-term sustainability and ultimately the reputation and legitimacy of both institutions, some form of workable consensus will have to be negotiated — and that will only happen far from the grandstanding hotheads.

http://www.bdlive.co.za/opinion/2013/06/11/au-icc-leaders-must-find-consensus-on-kenya-warrants

“What is so concerning about this matter, is that the media has consistently been publishing incorrect information about the case. Much of what has been said so far in the media is pure fabrication and bears little resemblance to the facts in this case. It is unfortunate that the two men were arrested at the height of anti-gay rhetoric expressed by politicians, religious leaders and the media,” stated Anneke Meerkotter, LGBT/Sex Work Project Lawyer at the Southern Africa Litigation Centre (SALC).

The accused are represented by Sunday Nkonde SC from SBN Legal Practitioners. The case is supported by SALC.

SALC will provide updates on the case on our website and twitter feed @follow_salc.

Additional information on the case is available here.

For more information

Anneke Meerkotter, SALC LGBT/Sex Work Project Lawyer; Tel: + 27 (0)72 234 4763; E-mail: annekem@salc.org.za

Priti Patel, SALC Deputy Director: Tel: + 27 (0)76 808 0505; E-mail: pritip@salc.org.za

Nicole Fritz, SALC Executive Director: Tel: +27 (0)82 600 1028; E-mail: nicolef@salc.org.za

Kasonkomona was arrested in April and charged with violating section 178(g) of the Zambian Penal Code, which criminalises ‘every person who in any public place solicits for immoral purposes’ for public comments he made regarding the rights of lesbian, gay, bisexual and transgender individuals and sex workers.

After Kasonkomona’s first appearance at the Magistrate’s Court last month, the defence filed a constitutional application on two grounds – that section 178(g) of the Penal Code is vague and infringes on the right to freedom of expression; and that the Zambian prosecution’s practice of not providing an accused with detailed information about his case violates his right to a fair trial under the Constitution.

In response, the State filed papers arguing that there were no rights at stake to justify a constitutional reference to the High Court. The State further argued that a person’s right to freedom of expression can be limited on public morality grounds, and that the term ‘immoral purpose’ is clear as it refers to any behaviour unacceptable to society in a Christian nation.

The origins and purpose of section 178 will be at the crux of the arguments before the High Court. The State has argued that section 178 was intended by the legislature to curb speech on moral issues, while the defence maintains that the section was situated in the Penal Code chapter on nuisance and because of its origins in the English Vagrancy Act of 1898 it was merely incorporated into Zambian law without being discussed by the Zambian legislature.

The date of the High Court hearing will be confirmed in the coming months.

Kasonkomona is represented by Sunday Nkonde SC and William Ngwira from SBN Legal Practitioners, supported by SALC.

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