Breakfast Talk by Thuli Madonsela (former Public Protector of South Africa)

By Rosalie Dieleman and David Lando, Research Associates PILPG-NL

Thuli Madonsela, former Public Protector of South Africa*, was invited by the Tällberg Foundation and TheRockGroup to a breakfast talk on 28 November 2016, which PILPG Research Associates Rosalie Dieleman and David Lando attended.

Ms. Madonsela is the former Public Protector of South Africa, Chairperson of the African Ombudsman Research Center in South Africa, and one of the drafters of the South African post-Apartheid constitution. She has been in the spotlight during the last year for a report she filed before leaving the Office of the Protector regarding the connection between South African President Zuma and Indian-South African lucrative businessmen Ajay, Atul, and Rajesh Gupta. The report “details a disturbing web of influence exerted over parts of the South African state by a powerful family of Mr. Zuma’s chums”,[1] the Gupta family. The report indicates that the Gupta family was involved in political appointment, including that of the South African finance minister.

The breakfast talk, however, did not focus only on the report by Madonsela, but on her work as a Public Protector in general, and her views on the South African legal system. Her views on the role of the law in society were shaped by leaders such as Nelson Mandela, who, according to her, used the law as a tool to heal society, and to bring people together. In her role as a Public Protector she attempted to use the law in a similar way. This attitude was evident in her role as a co-drafter of the post-Apartheid constitution as well. When asked about her inspiration for drafting the constitution she responded that it came from observing the past and concluding what she did not want to be repeated, while looking to the future and envisioning the society she wanted to see in South Africa. This process, she says, was a part of what inspired the drafters to create the Public Protector institution, as a safeguard for constitutional democracy.

Ms. Madonsela often faced significant resistance in her attempts to apply the law as a Public Protector. When asked why, and how, she persisted in her investigation of President Zuma despite strong resistance from the Zuma camp and others, she answered that the right question should be: why wouldn’t I? She noted that investigating the people in power was her duty as Public Protector, and that continuing her investigation was essential for fulfilling the Office. The source of her personal motivation and what kept her going, she says, was notion she holds of the South Africa she wants to see.

Another point of interest was the recent withdrawal of South Africa from the Rome Statute, which we extensively discussed in other posts in this website. While negative consequences of the withdrawal were widely discussed, David Lando, Research Associate at the PILPG, inquired whether the withdrawal could also pose an opportunity for strengthening pan-African legal institutions. Madonsela noted that she loves the optimism of the youth, but that she is not sure optimism is warranted in this case. She argued that before withdrawing, states must have an alternative to the ICC already in place. At the moment, she said, the withdrawal leaves legal vacuum which will inevitably lead to impunity. She stressed the importance of fighting impunity by stating: “injustice is an open wound, until you have dealt with it, peace will never be sustainable”. An improvement of the African and South African legal systems that will allow them to prosecute serious international crimes will require commitment and serious effort, as changes such as these do not happen magically.

Ms. Madonsela is enthusiastic about the role people can take to change their societies. Drawing from her own experiences, she encouraged everyone to take a stand in shaping their societies according to their own values. She noted that change must come both from within and outside the system. For a change to be successful it must incorporate people that are within the political and legal systems of a State, civil society, and the public.

* explanation of the Office of the Public Protector: The Office of the Public Protector was established under Act 108 of the South African constitution of 1996. It mission is to strengthen constitutional democracy by “investigating, rectifying, and redressing any improper or prejudicial conduct in state affairs and resolving related disputes”.[2] The jurisdiction of the Protector is extensive, as it “has jurisdiction over all organs of state, any institution in which the state is the majority or controlling shareholder and any public entity”.[3]

Footnotes

[1] The Economist, South Africa’s Public Protector Finds “State Capture” by the President’s Pals, (Nov. 5 2016), Available at http://www.economist.com/news/middle-east-and-africa/21709512-clock-has-been-started-could-lead-jacob-zumas-removal-south-africas.

[2] Public Protector South Africa, Vision and Mission, (2009), Available at http://www.pprotect.org/about_us/Vision_mission.asp.

[3] Public Protector South Africa, History and Background to the Office of the Public Protector, (2009), available at http://www.pprotect.org/about_us/history_background.asp.

Tenth Plenary Meeting of the ASP15

Overview by Emma Bakkum and David Lando, Research Associates PILPG-NL

Highlights:

1. Adoption of draft resolutions worked on during the 8th and 9th plenary meetings.

2. Introduction of the Omnibus Resolution. China expressed concern about non-member states being excluded from informal consultation processes.

The 10th plenary meeting on the last day of the 15th ASP consisted of the adoption of several draft resolutions that have been worked on during the 8th and 9th plenary meetings.

First of all, the Omnibus Resolution was introduced. The date of next year’s ASP was also discussed: ASP16 will take place between 4 and 14 December 2017, in New York. Regarding the Omnibus Resolution, China and Iran expressed concerns about the exclusion of non-member states from informal consultation processes, such as the consultation process for the Omnibus Resolution. China argued that there is no legal basis for excluding observer states. China furthermore added that excluding observer states harms them, and reiterated that in the interest of promoting the legitimacy and universality of the ICC, all states should be included. “Urgent action is needed for this injustice already existing” – China ended its statement.

Secondly, the following draft resolutions were adopted without a vote.

– Resolution ICC-ASP/15/Res.1 on the proposed programme budget for 2017.

Before the adoption of this resolution, Brazil called for revision of the process leading to the establishment of the (increased) budget. According to Brazil, the budget proposal is not in accordance with the financial realities of member states. Venezuela furthermore expressed hope to see adjustments next ASP in “sticking to the budget” and to see all organs of the Court working closely together to identify where cost-savings are possible. Japan reiterated these two points after adoption.

– Resolution ICC-ASP/15/Res.5 on permanent premises.

– Resolution ICC-ASP/15/Res.3 on cooperation.

– Resolution ICC-ASP/15/Res.4 on amendments to rule 101 and rule 144(2)(b) of the Rules of Procedure and Evidence.

Lastly, two members for the CBF were elected. Africa elected a member from Burkina Faso and the Eastern European group elected Estonian candidate Mr. Urmet Lee. They clarified later that an agreement was made between Estonia and Bosnia Herzegovina that Mr. Lee would serve the first half and Mrs. Emina Ćirić from Bosnia Herzegovina the second half of the term.

Side Event: Complementarity in Central and West-Africa (co-hosted by France, Senegal, International Federation of Human Rights (FIDH) and Amnesty International)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• Alioune Tine, Director, Regional Office for West and Central Africa, Amnesty International

• Karine Bonneau, Head, International Justice Desk, FIDH

• Drissa Traoré, Lawyer and FIDH Vice President (Mali)

• Mathias Maroub, President of the Central African Observatory for Human Rights (CAR)

• Asmao Diallo, President of the Association of Victims, AVIPA (Guinea)

• Jacques Mbokani, Professor of Law, Catholic University of Louvain (DRC)

Highlights:

1. This side event focused on Central and West African states that provide an example of how complementarity between ICC and States Parties works in practice.

2. The panelists highlighted domestic challenges, such as ongoing insecurity and instability, the lack of political will, and capacity building.

3. The panelists underlined the importance of complementary justice efforts to provide justice for victims.

4. Amady Ba, head of international cooperation at the OTP, noted that the ICC truly encourages complementarity.

5. The CAR Special Criminal Court is not functioning yet due to financial problems and national and international judges need to be appointed. The headquarters are in Bangui and security will be ensured both by national and UN forces. The applicable law is CAR law, but judges will be able to refer to international standards.

Developments in Central and West African states, namely the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Guinea, and Mali, provide examples of how complementarity between the ICC and States Parties works in practice. The panelists of this side event highlighted some of the domestic challenges faced by these countries in pursuing complementary justice, especially the lack of political will, capacity building, and ongoing insecurity and instability. All of the speakers underlined the importance of complementary justice efforts in providing justice for victims.

Asmao Diallo discussed the witness testimonies concerning the situation in Guinea. She noted that victims remain insecure and those responsible remain able to intimidate victims to prevent prosecutions. She also noted that the ICC’s OTP is committed to seeking justice in Guinea and often visited and consulted regarding investigations. Drissa Traoré discussed the developments of judicial processes in Mali and highlighted certain challenges, including the lack of political will, insecurity of the judges, and the lack of capacity and resources. Jacques Mbokani then mentioned jurisprudence of the Congolese courts in terms of prosecution of crimes under the Rome Statute. Although he praised the number of cases the courts have completed and the work of NGOs, he noted the need for improvements. A clear strategy for the prosecution of international crimes is necessary, as up until now prosecutions have been carried out in “a sort of haphazard manner”. Moreover, courts should interpret complementarity differently in order to include crimes committed before 2002. Finally, courts should have a higher capacity in order to prosecute “bigger fish” and to strengthen the protection of witnesses and victims. Mathias Maroub discussed the Special Criminal Court in CAR and noted that the persistent insecurity in CAR remains a barrier for the court and discourages victims from seeking justice.

Amady Ba, head of international cooperation at the OTP, added that the ICC truly encourages complementarity. The OTP is working in an efficient manner on complementarity by encouraging political will to ensure national prosecution of international crimes.

Questions were raised regarding the location and security of the Special Criminal Court in CAR, and the applicable law. Mathias Maroub answered that the headquarters are in Bangui and that security will be ensured both by national and UN forces. The applicable law will first of all be CAR law, but judges will be able to refer to international standards. He furthermore noted that the court is not functioning yet due to financial problems and that national and international judges need to be appointed. The last question related to states that prefer to reduce the role of complementarity. Asmao Diallo answered with a call upon states to make sure to prosecute those responsible for crimes wherever they might find them. Victims must be heard and those responsible must be prosecuted. Her colleague added that wanting to reduce the role of complementarity it is the wrong message to send, especially for victims.

Eleventh Plenary Meeting of the ASP15

Overview by Rosalie Dieleman and Emma Bakkum, Research Associates PILPG-NL

Highlights:

1. The Assembly called upon all states to contribute to the trust fund to facilitate participation in future ASPs for underdeveloped states.

2. Vice President Sergio Ugalde concluded the ASP by thanking all parties involved for their cooperation and commitment.

The 11th and final plenary meeting concluded the 15th ASP with the adoption of the Omnibus Resolution, the consideration and adoption of the report of the Credentials Committee and the report of the 15th session of the ASP.

Firstly, the Omnibus Resolution, ”Strengthening the ICC and the ASP” (ICC-ASP/15/L.3), was adopted. Ghana, as coordinator of the African group, expressed concerns about transparency of staffing practices of the Court. Ghana requested on behalf of the African Group, that the registrar would provide no later than 31 January 2017 a comprehensive report on the staffing practices of the Court. Containing amongst other information the nationality and gender of each post. Kenya, Nigeria, Tunisia, Venezuela, Namibia, Botswana, Uganda, South-Africa, DRC, Burkina Faso, Tanzania, and Lesotho spoke out to support this statement. France furthermore expressed it was having some difficulties with regards to the translated text of the Omnibus resolution, and requested the coordinator to have another look at this translation.

The resolution was adopted in consensus, and Belgium, Kenya and the Vice President of the ASP thanked the facilitor for the work she had undertaken. Subsequently, the report of Credentials Committee (ICC/ASP/15/L.2) and the report of the 15th ASP session (ICC/ASP/15/L) were adopted by consensus. Under the agenda item “other matters” the Vice President of the ASP thanked civil society, the Court and delegations for expressing their views and contributing to the dialogue during the open meeting of the Bureau concerning the relationship between the Court and African states. Furthermore, appreciations were expressed for those states who had contributed to the Trustfund for Victims, and called upon those in the position to do so to make further donations.

After this rather speedy adoption of the resolutions and reports without extensive debate, Vice President Sergio Ugalde concluded that the ASP was able to successfully conclude its work. He thanked states parties, civil society and members of the Court itself for contributing in achieving this result. He stated that this was a very challenging ASP for various reasons, yet dialogue in an open, sincere, profound and respectful manner contributed to a successful outcome. Ugalde stated that: ”We remain bound by our common endeavor to combat impunity and bring relief to victims of atrocious crimes”. He officially concluded the 15th session of the Assembly of States Parties to the Rome Statute by thanking all parties involved for their “cooperation and commitment and constructive spirit” and closed the session with a minute of silence and meditation.

Side Event: Complementarity in Central and West-Africa (co-hosted by France, Senegal, International Federation of Human Rights (FIDH) and Amnesty International)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• Alioune Tine, Director, Regional Office for West and Central Africa, Amnesty International

• Karine Bonneau, Head, International Justice Desk, FIDH

• Drissa Traoré, Lawyer and FIDH Vice President (Mali)

• Mathias Maroub, President of the Central African Observatory for Human Rights (CAR)

• Asmao Diallo, President of the Association of Victims, AVIPA (Guinea)

• Jacques Mbokani, Professor of Law, Catholic University of Louvain (DRC)

Highlights:

1. This side event focused on Central and West African states that provide an example of how complementarity between ICC and States Parties works in practice.

2. The panelists highlighted domestic challenges, such as ongoing insecurity and instability, the lack of political will, and capacity building.

3. The panelists underlined the importance of complementary justice efforts to provide justice for victims.

4. Amady Ba, head of international cooperation at the OTP, noted that the ICC truly encourages complementarity.

5. The CAR Special Criminal Court is not functioning yet due to financial problems and national and international judges need to be appointed. The headquarters are in Bangui and security will be ensured both by national and UN forces. The applicable law is CAR law, but judges will be able to refer to international standards.

Developments in Central and West African states, namely the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Guinea, and Mali, provide examples of how complementarity between the ICC and States Parties works in practice. The panelists of this side event highlighted some of the domestic challenges faced by these countries in pursuing complementary justice, especially the lack of political will, capacity building, and ongoing insecurity and instability. All of the speakers underlined the importance of complementary justice efforts in providing justice for victims.

Asmao Diallo discussed the witness testimonies concerning the situation in Guinea. She noted that victims remain insecure and those responsible remain able to intimidate victims to prevent prosecutions. She also noted that the ICC’s OTP is committed to seeking justice in Guinea and often visited and consulted regarding investigations. Drissa Traoré discussed the developments of judicial processes in Mali and highlighted certain challenges, including the lack of political will, insecurity of the judges, and the lack of capacity and resources. Jacques Mbokani then mentioned jurisprudence of the Congolese courts in terms of prosecution of crimes under the Rome Statute. Although he praised the number of cases the courts have completed and the work of NGOs, he noted the need for improvements. A clear strategy for the prosecution of international crimes is necessary, as up until now prosecutions have been carried out in “a sort of haphazard manner”. Moreover, courts should interpret complementarity differently in order to include crimes committed before 2002. Finally, courts should have a higher capacity in order to prosecute “bigger fish” and to strengthen the protection of witnesses and victims. Mathias Maroub discussed the Special Criminal Court in CAR and noted that the persistent insecurity in CAR remains a barrier for the court and discourages victims from seeking justice.

Amady Ba, head of international cooperation at the OTP, added that the ICC truly encourages complementarity. The OTP is working in an efficient manner on complementarity by encouraging political will to ensure national prosecution of international crimes.

Questions were raised regarding the location and security of the Special Criminal Court in CAR, and the applicable law. Mathias Maroub answered that the headquarters are in Bangui and that security will be ensured both by national and UN forces. The applicable law will first of all be CAR law, but judges will be able to refer to international standards. He furthermore noted that the court is not functioning yet due to financial problems and that national and international judges need to be appointed. The last question related to states that prefer to reduce the role of complementarity. Asmao Diallo answered with a call upon states to make sure to prosecute those responsible for crimes wherever they might find them. Victims must be heard and those responsible must be prosecuted. Her colleague added that wanting to reduce the role of complementarity it is the wrong message to send, especially for victims.